Valparaiso University Law Review
Volume 42
Number 2
pp.585-628
Winter 2008
Got Mold? Improving Plaintiff 's Toxic Mold
Causation Problems with the Introduction of DNA
and Mycotoxin Extraction Testing
Reid S. Hooper
Recommended Citation
Reid S. Hooper, Got Mold? Improving Plaintiff's Toxic Mold Causation Problems with the Introduction of DNA and Mycotoxin Extraction
Testing , 42 Val. U. L. Rev. 585 (2008).
Available at: http://scholar.valpo.edu/vulr/vol42/iss2/5
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Hooper: Got Mold? Improving Plaintiff's Toxic Mold Causation Problems wit
GOT MOLD? IMPROVING PLAINTIFFS’
TOXIC MOLD CAUSATION PROBLEMS WITH
THE INTRODUCTION OF DNA AND
MYCOTOXIN EXTRACTION TESTING
I. INTRODUCTION
In some areas of the United States people are fleeing their homes and
even having them destroyed due to health problems caused by a
dangerous intruder. It is greenish, black, dangerous, and growing fast.1
The intruder is black mold.2 Its scientific name is stachybotrys
chartarum.3 Black mold is causing people to leave homes and abandon
beautiful buildings across the country. A family in Oregon, for instance,
had their home burned to the ground after mold was found inside.4 In
Hawaii, the Hilton Hawaiian Village Hotel in Waikiki shut down one of
its towers because of mold growth in some of the rooms.5 Even trendy
Park Avenue apartments in New York City are being abandoned due to
mold infestations.6 The reason for the panic is due to the realization that
black mold is an organism that can have a severe effect on public health.7
Black molds or fungi comprise a large population of ubiquitous
organisms present in the environment.8 Over the past fifteen to twenty
years, however, toxic mold exposure has become more hazardous and
1
See CDC, Questions and Answers on Stachybotrys Chartarum and Other Molds, Nov. 2004,
available at http://www.cdc.gov/mold/pdfs/stachy.pdf (describing the species of toxic
mold known as Stachybotrys Chartarum).
2
See discussion infra Part II.A (discussing black mold and the health effects associated
with it).
3
See infra notes 51-52 and accompanying text (explaining the scientific name for black
mold).
4
Toxic Intruder Has Families fleeing Their Homes, ABC NEWS, Nov. 29, 2006, available at
http://abcnews.go.com/2020/story?id=123794&page=1 [hereinafter ABC]. In Oregon, the
O’Hara family was forced to hire their local fire department to burn their $450,000 home to
the ground after mold was found inside. Id. Mark O’Hara referred to the home as
“basically just a house that poisoned my family.” Id. Scientists attributed the family’s
nosebleeds and headaches to mold found in the O’Hara home. Id.
5
Andrew Gomes, Mold Closes New Hilton Tower, HONOLULU ADVERTISER, July 25, 2002,
at A1 (describing how construction on one of the new towers of the Hilton Hawaiian
Village was shut down due to mold growth inside of the walls).
6
Bianca Jagger Hit With Contempt of Court: Bianca Jagger Fined $500 for Contempt of Court
for Withholding Apartment Rent Over Mold Issue, ABC NEWS, Sept. 6, 2006, available at
http://abcnews.go.com/Entertainment/wireStory?id=2402872. Bianca Jagger, former wife
of Rolling Stone Mick Jagger, claimed her Park Avenue apartment in New York City
unlivable due to toxic mold infestation. Id.
7
See infra Part II.A (discussing what mold is and the possible health effects it has on
those who are exposed).
8
See infra Part II.A (discussing the many different types of molds).
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frequent.9 As a result, scientific and medical literature now addresses
black molds as being possible pathogens in human disease.10 After
hurricane Katrina, the Center for Disease Control and Prevention
(“CDC”) issued new, revised warnings as to health effects of toxic mold
exposure.11 Climate changes, improper building environmental controls,
poor building maintenance, and energy efficient building practices
generate opportunities for people to have a greater exposure to black
molds.12 Thus, the question remains: who is to be held responsible for
the outbreak of such a dangerous organism?13 In most situations, it is
not difficult for an exposed person to find someone they believe to be
responsible for toxic mold growth.14 However, the problem exposed
individuals seem to have is convincing courts of law of the relationship
between their disease and the mold growth.15 As personal injury mold
cases begin to surface across the country, proving causation through
scientific expert testing emerges as the primary obstacle to recovery for
mold-exposed plaintiffs.16
Causation is the primary impediment to a mold-exposed plaintiff’s
personal injury claim.17 Because studies examining specific levels of the
hazardous nature of mold are inconsistent, the plaintiff’s case often rests
entirely on opinions offered by scientific experts.18
See infra Parts II.A-B (discussing the hazardous health effects of mold and the rise in
mold litigation over the past twenty years).
10
See infra Part II.A (noting the fact that mold can cause a variety of health problems,
especially respiratory ailments).
11
See infra note 63 (stating the adverse health effects the CDC recognizes as related to
mold exposure).
12
See infra Part II.B (discussing possible reasons experts have stated for the increase in
mold exposure across the country).
13
See discussion infra Part II.B (noting the recent history of mold litigation and who
plaintiffs attempt to hold responsible); ABC, supra note 4 (the common defendant seems to
be either insurance or construction companies).
14
See discussion infra Part II.B (more and more homeowners are filing insurance claims
and lawsuits over toxic mold). See also ABC, supra note 4. In Texas, more than 14,000
insurance claims involving mold related issues were filed in 2006 alone. Id. As a result,
insurance companies in Texas have asked the state to allow them to drop mold coverage
from homeowners’ policies. Id.
15
See discussion infra Part II.C (noting that many experts believe there is no conclusive
proof that serious illnesses are caused by exposure to mold).
16
See infra Part II.C (discussing causation problems plaintiffs have in toxic mold suits).
17
Causation is defined as “[a] necessary link between a wrongful act and resulting
damage which grounds liability.” BLACK’S LAW DICTIONARY 233 (8th ed. 2004).
18
See infra Part II.C (discussing the scientific uncertainty in mold exposure cases giving
rise to the need for expert testimony).
9
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Rule 702 of the Federal Rules of Evidence (“FRE”), along with
notable federal case law, governs expert admissibility in federal courts.19
Therefore, when courts analyze certain scientific testing related to mold
exposure, decisions of admissibility are often determined on whether or
not the court recognizes the testing as meeting the governing
standards.20 Thus, it is often the case that inconsistent decisions arise
due to the amount of discretion left up to the courts.21 The inconsistency
surrounding admissibility standards causes plaintiffs to have a difficult
time proving causation in toxic mold personal injury cases.22
Consequently, creating mold detection testing that can consistently pass
governing standards is necessary.
As such, new scientific testing involving extracting, recovering, and
identifying toxic mold DNA in human tissue and fluids provides mold
exposure plaintiffs with the opportunity to present their theory of
causation to a jury and circumvent the stringent admissibility standards
that have for so long damaged mold plaintiffs’ cases.23 DNA testing is
used in many areas of medicine and is known for its accuracy and
reliability.24 Along these lines, when courts analyze scientific testing
with flexibility, more and more plaintiffs will have the opportunity to
present scientific testing, such as DNA extraction, and thus end the
miscarriage of justice that has long plagued toxic mold litigation.25
This Note proposes that, when faced with mold exposure cases,
federal and state courts should admit expert testimony on DNA
extraction testing under the Federal Rules of Evidence. Part II of this
Note begins with a general discussion of mold, continues with mold’s
potential effects on human health, and concludes with an explanation of
the past, present, and future of mold detection testing.26 Part III begins
See infra Parts II.C.1-2 (discussing how Rule 702 and 703 of the FRE, along with
significant federal case law such as Daubert v. Merrell Dow Pharmaceuticals and Frye v. U.S.,
govern the admissibility of expert testimony in the courtroom).
20
See infra Part II.D (discussing the various mold detection testing used in the past and
present).
21
See discussion infra Parts II.C.3, II.D.1, III.A.1-2 (noting inconsistent court decisions
relating to admissibility of mold detection testing).
22
See infra Part II.C (noting the difficulty plaintiffs have in proving causation in toxic
mold cases).
23
See discussion infra Part III.B (applying DNA extraction testing to the standards that
have to be met to be admitted into court as expert testimony).
24
See discussion infra Parts II.D.2, III.B (identifying and then analyzing DNA testing in
many scientific fields).
25
See discussion infra Parts IV.A-B (analyzing a two-step approach courts should use
when analyzing scientific expert testimony).
26
See infra Part II (discussing mold and the scientific testing used to detect its presence).
19
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with a jurisdictional analysis of toxic mold case law and continues with
an analysis of DNA extraction testing, specifically demonstrating how
this methodology satisfies federal standards on scientific expert
admissibility.27 Finally, Part III proposes that policy reasons–such as
fairness and jury integrity–support the admission of expert testimony in
mold exposure cases.28 Part IV of this Note outlines a model approach
courts should consider that may help cure the abuse of discretion
involving scientific expert testimony in toxic mold litigation.29 Part V
concludes with the proposal that scientific expert testimony on DNA
extraction testing is reliable and should, therefore, be admissible in mold
exposure cases.30
II. BACKGROUND
In order to fully understand the implications of both federal
statutory and case law in the area of mold exposure litigation, it is
important to have a basic comprehension of mold and the causation
problems mold triggers.31 Health issues surrounding toxic mold are the
main reason personal injury mold litigation is on the rise across the
United States.32 The unique nature of mold exposure injuries, combined
with the lack of legislation establishing clear standards for unsafe levels
of mold, only aggravates efforts to establish causation in the courtroom.33
Plaintiffs confront causation problems in most cases by seeking expert
help to assist the trier of fact in understanding evidence and determining
causation.34 This is no different for mold exposure plaintiffs who must
use scientific expert testimony to establish causation.35 However,
existing scientific evidence on the health effects of mold is not fully
27
See infra Parts III.A-B (analyzing the accuracy and reliability of DNA testing in many
areas of science, including toxic mold testing).
28
See infra Part III.C (arguing for the jury to have the opportunity to hear more expert
testimony).
29
See infra Part IV (contributing a judicial approach based on flexibility and relevancy).
30
See infra Part V (concluding with a proposal that DNA extraction testing be admissible
in mold exposure cases).
31
See discussion infra Parts II.A-C (discussing toxic mold and the obstacles surrounding
mold litigation).
32
Julie S. Elmer, A Fungus Among Us: The New Epidemic of Mold Claims, 64 ALA. L. REV.
109, 109 (2003).
33
See discussion infra Part II.B (discussing the emergence of mold litigation).
34
See discussion infra Part II.C (noting causation problems plaintiffs experience in mold
litigation).
35
See discussion infra Part II.C (stating that plaintiffs have to use scientific expert
testimony to prove causation).
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accepted; thus, the major challenge in such litigation becomes whether
such expert testimony meets established admissibility standards.36
In establishing the groundwork, Part II.A describes what toxic mold
is and the health issues associated with it.37 Part II.B discusses the
history of mold litigation and the various policy arguments that have
arisen along the way.38 Part II.C discusses the relevant causation
problems that confront expert witnesses in toxic mold cases.39
Specifically, Part II.C explains the various standards used in determining
the admissibility of scientific evidence.40 Part II.D concludes with an
examination of the mold detection testing used in the past and the
current testing used today.41
A. What is Toxic Mold?
Molds are fungi that can come in an array of species.42 They
reproduce by releasing tiny spores that continually travel through indoor
and outdoor air.43 Mold lands on wet or damp areas and begins to grow
and digest the material on which it rests.44 Mold growth poses particular
36
See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-93 (1993) (requiring expert
opinions to be the product of reliable principles and methods, including peer review and
scientific testing of theories).
37
See discussion infra Part II.A (describing the many types of mold and the health issues
that can result from exposure).
38
See discussion infra Part II.B (explaining the history mold litigation).
39
See discussion infra Part II.C (discussing major causation problems mold-exposed
plaintiffs experience).
40
See discussion infra Parts II.C.1-2 (setting forth admissibility standards laid out in the
FRE and federal case law).
41
See discussion infra Part II.D (explanation of current mold detection testing).
42
David F. Blundell, Proliferation of Mold and Toxic Mold Litigation: What is Safe Exposure
to Airborne Fungi Spores Indoors?, 8 ENVTL. LAW. 389, 391 (2002). There are more than
100,000 species of mold on Earth, with at least 1,000 species commonly found in the United
States. Id. Of the 100,000 different types of mold, only a few are potentially harmful to
human health. Id.
43
See U.S. Environmental Protection Agency, A Brief Guide to Mold, Moisture, and Your
Home, http://www.epa.gov/mold/moldresources.html [hereinafter EPA]. Mold spores
can enter homes through doorways, windows, heating, ventilation, and air conditioning
systems. Id.
44
See EPA, supra note 43. Molds can be found almost anywhere there is moisture,
oxygen, and something to feed on. Id. Susan Lillard, Mold . . . What is it All About?, Feb. 16,
2006, available at http://mold-help.org/. Molds can grow on areas such as rotting logs and
fallen leaves, or in moist areas. Id. Molds can be found in damp basements, closets, and
bathrooms, even after the area has dried up. Id. Also, fresh food storage places are subject
to mold exposure, including refrigerator drip trays, house plants, humidifiers, garbage
cans, and mattresses. Id. The most common and most dangerous place that molds grow is
inside wall cavities and the flooring of homes. Id. Wherever there is material that the
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problems for humans in that some species of mold cause adverse health
effects.45 Mold spores produce toxic substances, or fungal metabolites,
called mycotoxins, which are known to have serious health effects on
humans.46 Mycotoxins enter the body through inhalation or contact with
the skin.47 Mycotoxin producing mold is commonly referred to as toxic
mold.48
Toxic mold comes in many forms and is known by such names as
stachybotrys chartarum, aspergillus, penicillium, trichoderma, and
helminthosporium.49 Of the estimated 100,000 existing species of mold,
only a few thousand can currently be identified and only very few have
been identified “toxic molds” by the CDC.50
The most well known and studied toxic mold is stachybotrys
chartarum.51 Stachybotrys, also known as “black mold,” is considered to
molds may feed on is where they will grow, such as wood, ceiling tiles, and plasterboards.
Id.
45
Nana Nakano, Toxic Mold in California: Recent Verdicts and Legislation, ANDREWS
TOBACCO INDUS. LITIG. REP., July 12, 2002, at 10. Exposure to molds can cause a number of
adverse effects, including allergic reactions, asthma attacks, and infections. Id. Most
healthy individuals have built up a tolerance to mold and do not experience significant
adverse reactions to the average household mold. Id. However, people with weak immune
systems can suffer sever aggravation of existing conditions based on their exposure to
mold. Id.
46
Blundell, supra note 42, at 392. The following factors determine the impact of mold on
humans: 1) the species of the mold involved; 2) the mycotoxins the species produces; 3)
quantity and duration of one’s exposure to the mold; 4) and the individual susceptibility of
the individual exposed. Id.
47
See ALEXANDER ROBERTSON IV, Microbiological Contamination Litigation a/k/a ‘The Mold
Monster’, MEALEY’S EMERG. TOXIC TORTS 26 (1999) (discussing human contact with
mycotoxins).
48
See id. (defining mycotoxins); see also Stephen J. Henning & Daniel A. Berman, Mold
Contamination, Liability and Coverage Issues: Essential Information You Need to Know for
Successfully Handling and Resolving Any Claim Involving Toxic Mold, 8 HASTINGS NW. J.
ENVTL. L. & POL’Y 73, 81 (2001) (discussing how the term “toxic mold” is a media term that
has evolved over the years to describe the limited grouping of molds that have the
potential to cause human health problems).
49
Edward H. Cross, Toxic Mold: The Fourth Wave of Construction Defect Litigation?, 40
ORANGE COUNTY L. 26, 27-28 (1998). Toxic strains of mold are suspected of causing
symptoms such as fatigue, nausea, headaches, depression, tremors, rashes, respiratory
distress, intestinal hemorrhage, diarrhea, vomiting, and bleeding of the lungs. Id. Some
toxic molds produce mycotoxins that have been classified as human carcinogens. Id.
50
See John Mitby, Out of the Dark: The Emergence of Toxic Mold Litigation (2002), available at
http://www.axley.com/articles.html?pf=1&CID=7&AID=38; see also CDC, infra note 63
(explaining mold species that are identified as toxic).
51
See Abba I. Terr, Stachybotrys: Relevance to Human Disease, 87 ANNALS ALLERGY
ASTHMA IMMUNOLOGY 57, 63 (2001). Stachybotrys–commonly known as black mold—is
usually found growing in basements or showers. TOXIC MOLD LITIGATION 3 (Raymund
King ed., ABA 2003). Stachybotrys was first discovered after a mysterious illness affecting
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be the most dangerous toxic mold.52 Black mold is known as the most
dangerous toxic mold because of its ability to release chemicals known as
“macrocyclic tricothecenes and immunotoxins.”53 With their toxic and
immune-suppressing capabilities, tricothecenes are allegedly responsible
for severe medical complications in some individuals, including
neurological and cardiopulmonary disorders.54
Along with black mold, there are two other main mycotoxinproducing molds that are not as potent as stachybotrys but can still have
the same disease-causing effect: aspergillus and penicillium.55
Aspergillus is distinguished from stachybotrys in that it does not
produce tricothecenes, but is just as dangerous due to its ability to
produce one of the most potent carcinogens, aflatoxin B.56 Also,
penicillium spores have the highest concentrations of mycotoxins.57
Thus, aspergillus and penicillium may not be as widely known as
stachybotrys but these molds are still capable of growing indoors and are
just as capable of causing health problems.58
farm animals in the 1930’s was linked to black mold. Id. More specifically, widespread
disease and death of Ukrainian horses in 1939 was linked to stachybotrys. Id.; see also Bruce
Flammey & Kimberly Wind, Breaking the Mold, 42 ORANGE COUNTY LAWYER 22, 22 (2000)
(stating that Stachybotrys chartarum is especially harmful to small children, and possibly
having a potential link with Sudden Infant Death Syndrome (SIDS)).
52
Henning & Berman, supra note 48, at 81. Stachybotrys is one of the most common of
the toxic molds. Id.
53
See Henning & Berman, supra note 48, at 81. Tricothecenes pose a double threat: in
addition to the toxic nature of their chemical makeup, tricothecenes are capable of releasing
immunotoxins, which suppress the immune system. Id. Black mold’s ability to launch a
two-pronged toxic and immuno-suppressive attack gives black mold its unsavory
distinction. Id.
54
See Henning & Berman, supra note 48, at 81. Tricothecenes are known to cause serious
medical problems such as memory loss, fatal lung disease, and neurodysfunction. Id.
55
Id. at 82. Aspergillus and Penicillium do not produce tricothecenes or immunosuppressing chemicals. Id. However, exposure to these two different kinds of molds have
been linked to allergies, asthma, respiratory infections, and hypersensitivity pneumontsis.
Id.
56
Id. Aspergillus infections occur following inhalation of Aspergillus spores present in
the environment. Vince Bolton, Research and Development for Detecting Fungi and
Mycotoxins (Oct. 6, 2006) (unpublished manuscript, RealTime Laboratories) (on file with
author) [hereinafter RealTime].
57
See Harriet M. Ammann, Is Indoor Mold Contamination a Threat to Health?, (2001),
http://www.mold-survivor.com/harrietammann.htm (last visited Sept. 4, 2007). “Viability
of spores is not essential to toxicity, so that the spore as a dead particle can still be a source
of toxin.” Id.
58
See Henning & Berman, supra note 48, at 82. Various diseases and infections have
been linked to stachybotrys, aspergillus, and penicillium. Id. at 81-82.
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The adverse health effects of mold exposure are diverse in nature
and vary among individuals.59 The effects are generally characterized as
allergic, inflammatory, or toxic.60 However, toxic molds elicit far more
serious health effects.61 When exposed to mycotoxin producing mold
through inhalation, individuals with a weakened immune system
experience severe respiratory problems.62 Nevertheless, there is division
among the scientific community regarding the effect of mold on human
health.63
59
Edward H. Cross, Litigation À la Mol:, Mold Related Indoor Air Quality Claims May
Eventually Generate More Litigation than Asbestos, LOS ANGELES LAWYER, Jan. 2002, at 28-30.
Mold exposure can have different effects on people depending on one’s age and immune
system. Id.
60
See id. Typical allergy-related symptoms of mold may include runny nose,
congestion, eye irritations, and asthma. Blundell, supra note 42, at 391. See also Miller v.
Lakeside Vill. Condo. Ass’n, Inc., 2 Cal. Rptr. 2d 796, 803 (Cal. Ct. App. 1991) (showing a
link between the mold in plaintiff’s housing unit and plaintiff’s allergic reaction and severe
aggravation of asthma).
61
Blundell, supra note 42, at 391-92. Toxic mold is associated with agonizing symptoms
such as fatigue, nausea, headaches, rashes, diarrhea, vomiting, and bleeding of the lungs.
Id. The mycotoxin producing toxic molds can be inhaled, ingested, or exposed to the skin.
Id. See also Ruth A. Etzel, Mycotoxins, 287 JAMA, Jan. 23, 2002, at 425. While inhalation of
mycotoxins is the most potent route of exposure, ingestion of mycotoxins is of minimal
concern. Id. But see G. Holcomb Jr. et al., Outbreaks of Gastrointestinal Illness of Unknown
Etiology Associated with Eating Burritos-United States, October 1997-October 1998, 281 JAMA,
Apr. 14, 1999, at 1263-64 (discussing serious health effects from ingested mycotoxins and
how mycotoxins were a suspected cause in the late 1990s outbreaks of gastrointestinal
illness associated with eating burritos in seven states across the United States).
62
Nakano, supra note 45, at 10 (“Studies have suggested that individuals such as
children, immuno-compromised people (e.g. those with HIV) or pregnant woman appear
to be more susceptible to negative health effects from mold exposure.”).
63
See EPA, supra note 43. The Environmental Protection Agency (EPA) and the Centers
for Disease Control and Prevention (CDC) currently recognize only adverse health effects
associated with mold exposure pertaining to allergic reactions, asthma, and other
respiratory complaints. Id. The CDC suggests that only fever and shortness of breath are
two of the more serious reactions to mold exposure. CDC, Facts About Mold and Dampness,
http://www.cdc.gov/mold/dampness_facts.htm [hereinafter CDC]. The CDC explains
the potential health effects of mold in buildings and homes by suggesting these adverse
health effects, such as respiratory mold infections, may develop in people with pre-existing
chronic disease. Id. However, some scientists still maintain that exposure to mold may
cause serious health effects from benign to fatal. See Robert Hartwig, Mold and the Insurance
Industry: Truth and Consequences, INSURANCE INFORMATION INSTITUTE, Aug. 2002,
http://www.iii.org/media/presentations/mold (last visited Oct. 10, 2006) (presentation
listing alleged health effects of stachybotrys). The health problems associated with
stachybotrys include such serious health effects as pulmonary hemorrhage, liver damage,
central nervous system damage, cancer, and even death. Id.; see also, Robert E. Dales,
Richard Burnett & Harry Zwanenburg,, Adverse Health Effects Among Adults Exposed to Home
Dampness and Molds, 143 AM. REV. RESPIRATORY DISORDERS 505 (1991) (discussing a study
linking mold to lower respiratory symptoms). See generally American Academy of
Pediatrics Committee on Environmental Health, Toxic Effects of Indoor Molds, 101
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The differing views among the scientific community are due to the
lack of conclusive proof of a causal relationship between mold and some
of its alleged health effects.64 Despite this lack of conclusive proof in the
scientific community, plaintiffs continue to bring personal injury claims
based on mold exposure.65 Further, many courts have not only allowed
plaintiffs to bring claims forward, but have also agreed that serious
health problems can result from exposure to mold.66 Plaintiffs from
across the country have followed suit bringing claims alleging mold
exposure negatively affected their health.67
PEDIATRICS 712 (1998) (statement describing mold’s potential for causing severe respiratory
problems in infants).
64
See CDC, supra note 63 (asserting no test currently exists to prove association between
stachybotrys chartarum and certain health effects).
65
See, e.g., New Haverford P’ship v. Stroot, 772 A.2d 792, 795 (Del. 2001). The court
recounted alleged health problems of tenants suing landlord for damages stemming from
landlord’s negligence in allowing mold to develop in the apartment complex. Id. The court
found that the methodology underlying plaintiff’s expert’s causation opinion supported
the trial court’s decision to admit the testimony. Id. at 800. The methodology, differential
diagnosis, appeared to have insulated the expert’s opinion from a Daubert challenge:
[Dr.] Johanning testified that he followed the scientifically accepted
procedure of obtaining a medical history and a detailed questionnaire
from the plaintiffs. He then ruled out other possible causes of
plaintiffs’ health problems by reviewing that information together with
the blood test results and the data collected from the apartment
buildings. The foundation for an expert’s causation opinion need not
be established with the precision of a laboratory experiment.
Id. at 800. See Allison v. Fire Ins. Exch., 98 S.W.3d 227, 237 (Tex. App. 2002) (showing
plaintiff’s allegations of serious health symptoms). Plaintiff brought a claim alleging his
brain damage was due to exposure of stacybotrys mold. Id. at 239. Plaintiff offered
supportive expert testimony of the causal link between his brain damage and exposure to
stachybotrys. Id. at 239.
66
See New Haverford P’ship, 772 A.2d at 801 (upholding a substantial jury award to a
plaintiff who alleged that exposure to mold caused permanent cognitive impairment,
increased risk of tuberculosis, and osteopenia); see also, Mondelli v. Kendel Homes Corp.,
631 N.W.2d 846 (Neb. 2001) (allowing expert witnesses to testify in order to link toxic mold
exposure to the resulting personal injury). See generally Centex-Rooney Constr. Co. v.
Martin County, 706 So. 2d. 20 (Fla. Dist. Ct. App. 1997) (recognizing and accepting
scientific evidence indicating the disastrous health risks associated with exposure to toxic
mold). Even though Centex-Rooney is a property damage toxic mold case, the case
provides an example of how a plaintiff can establish causation through the use of expert
witnesses. Id.
67
See, e.g., Brandt v. Rokeby Realty Co., No. 97C-10-132-RFS, 2006 WL 1942314, at *1
(Del. Super. Ct. 2006) (plaintiff brought a personal injury action seeking to recover for
health and emotional problems he suffered allegedly because of mold growth in his office
building); Sutton v. Hermitage Mobile Home Sales, Inc., No. B175955, 2006 WL 1314023, at
1 (Cal. Ct. App. 2006) (plaintiff filed an action for personal injury damages against a mobile
home sales company after she found toxic mold inside the home); see also Roche v. Lincoln
Prop. Co., 278 F. Supp. 2d 744 (E.D. Va. 2003) (plaintiffs claiming toxic mold exposure
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Plaintiffs in cases such as Mondelli v. Kendel Homes Corporation68 and
Centex-Rooney Construction Company v. Martin County,69 decided in
Nebraska and Florida respectively, brought claims of mold exposure
specifically claiming exposure as the cause of adverse health effects.70
An additional case in Delaware, Minner v. American Mortgage & Guaranty
Company,71 alleged various illnesses due to exposure to mold in a
workplace.72 Whether every case of mold exposure causes serious health
effects remains unclear.73 However, the increasing number of plaintiff
suits alleging adverse health effects stemming from toxic mold exposure
suggests that when one is exposed to toxic mold a health problem of
some degree is likely to occur.74
B. History Surrounding Toxic Mold, the Relevant Toxic Mold Litigation, and
Regulations
Although mold has only recently emerged as an epidemic, some
believe moldy homes have been a problem since Biblical times.75 Even
health problems such as memory loss, chronic headaches, sinus problems, chest congestion,
and shortness of breath as a result of leaky fixtures and plumbing in their apartment
building); Minner v. Am. Mortgage & Guar. Co., 791 A.2d 826 (Del. Super. Ct. 2000)
(plaintiffs alleging they suffered various illnesses as a result of mold infestation in their
workplace).
68
Mondelli v. Kendel Homes Corp., 631 N.W.2d 846 (Neb. 2001).
69
Centex-Rooney Constr. Co. v. Martin Co., 706 So. 2d. 20 (Fla. App. 1997).
70
See Mondelli, 631 N.W.2d at 846; see also Centex-Rooney, 706 So. 2d at 20. In both cases,
plaintiffs testified that mold exposure was the main cause to their emerging respiratory
problems. See discussion infra Part III.A.1 (discussing plaintiffs in both cases using experts
to show causation linking mold exposure to the adverse health effects).
71
Minner v. Am. Mortgage & Guaranty Co., 791 A.2d 826 (Del. 2000).
72
See discussion infra Part III.A.2 (comparing the Minner case with other cases involving
toxic mold-exposed plaintiffs). In Minner, plaintiff alleged health problems such as asthma,
headaches, and sinus problems. See Minner, 791 A.2d at 826.
73
See CDC, supra note 63 (outlining various health effects the CDC recognizes mold
exposure may cause).
74
See supra notes 65-67 (discussing various cases where plaintiffs brought personal
injury claims due to alleged mold exposure).
75
See Leviticus 14:33-45 (New American Standard Bible). Christians believe human
awareness of mold can be traced back to the Bible itself. Id. In Leviticus 14:37-42, the Lord
tells Moses and Aaron how to rid a house of mold:
[H]e shall look at the mark, and if the mark on the walls of the house
has greenish or reddish depressions and appears deeper than the
surface; then the priest shall come out of the house, to the doorway,
and quarantine the house for seven days. And the priest shall return
on the seventh day and make an inspection. If the mark has indeed
spread in the walls of the house, then the priest shall order them to tear
out the stones with the mark in them and throw them away at an
unclean place outside the city. And he shall have the house scraped all
around inside, and they shall dump the plaster that they scrape off at
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though mold has existed for thousands of years, experts believe mold
growth inside of homes is increasing.76 Some believe the change in
building materials during the past twenty years is the main reason
behind the rise in mold growth.77 In the past, builders designed
buildings to have cross ventilation, open windows, and doors.78 With
the recent upsurge in tract housing and the use of cheaper building
materials, buildings have become more prone to mold growth when wet
than those built with traditional building materials.79 The change in
an unclean place outside the city. Then they shall take other stones
and replace those stones; and he shall take other plaster and replaster
the house.
Id.
See Mitby & Trost, supra note 50. The authors discuss that despite the American
public’s infatuation with cleanliness, the level of potentially harmful mold infestation in
residential and business structures has reached an all-time high in the past twenty years.
Id. The authors offer several explanations of why the increase of mold growth inside
homes has taken place. Id. The article discusses that the increase in mold awareness and
litigation may be the direct result of changes in building materials and recent construction
ideas. Id. The authors specifically mention the inefficient erection of new homes during
the surging economy of the 1990s as providing a breeding ground for toxic mold. Id. The
rapid pace of construction throughout the 1990s allowed many homes and office buildings
to be built with defects allowing water and moisture to move slowly into the interior of the
structures. Id. Once toxic mold has the opportunity to seep inside the structures, the mold
has a perfect environment to begin to grow due to the minimal water evaporating drafts
and numerous sources of food available. Id.
77
See Barry MacNaughton, Toxic Mold-It’s Not the New Asbestos, L.A. BUS. J., Nov.-Dec.
2002, available at http://ecjlaw.com/pdfs/realestate-nove2002.pdf (noting climate changes,
improper building environmental controls, poor building maintenance, and energy
efficient building practices have created opportunities for people to have a greater
exposure to black molds). See also Andy Dworkin, Mold Leaves a Trail of Victims, Lawsuits,
THE OREGONIAN, Aug. 19, 2001, at A1 (noting modern building methods encourage mold
growth—when airtight buildings with poor ventilation have water leaks, “they trap high
humidity and become hothouses for passing mold spores.”).
78
Gene Heady, Stuck Inside These Four Walls: Recognition of Sick Building Syndrome Has
Laid the Foundation to Raise Toxic Tort Litigation to New Heights, 26 TEX. TECH. L. REV. 1041,
1043 (1995). In the late 1970’s, architects started to design buildings that were more airtight
in order to retain heat or air conditioning, thereby increasing energy efficiency during the
then energy crisis. Id. Andrew Harvey, the President of the American Society of Heating
and Ventilation Engineers noted in 1905 that:
Within the next 10 years, the people of every state of the Union will
have become so well informed of the necessity for properly ventilated
schools and public buildings that it will be considered as great a crime
to construct these buildings without providing for sufficient and
proper ventilation, as it would be to erect a building without a proper
foundation.
Id. at 1041 n.1.
79
See Ralph C. McCullogh II & Michael M. Shetterly, Problems With Synthetic Stucco, 10
S.C. LAW, Nov.-Dec. 1998, at 32-34. The use of plasterboard, plywood, and synthetic stucco
is now common in most homes and buildings. Id. at 34. Synthetic stucco, which is prone to
water penetration, has become a popular construction material. Id. Synthetic stucco is
76
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building materials, combined with the fact that people spend more time
indoors, is one possible explanation for the rise in mold litigation over
the past two decades.80
Modern day mold litigation can be traced back to the 1970s, when
the first cases of building-induced health effects became widely known.81
Toxic mold litigation became very popular in the 1990s, especially in
warmer states.82 The most well-known and defining case in toxic mold
litigation, Allison v. Fire Insurance Exchange, took place in the heart of
Texas.83
Allison is one of the first cases where a plaintiff prevailed over an
insurance industry due to the insurer’s failure to deal with a viable mold
claim.84 The plaintiffs brought suit alleging that their insurance
company delayed in dealing with the mold problem in their home, thus
allowing stachybotrys to spread throughout the house.85 The Texas
designed to keep water out of a building, but if water seeps in, the water becomes trapped
and cannot be drained from inside the wall. Id. Thus, the water stained walls weaken the
infrastructure of the building and become a hotpot for mold breeding. Id. Additionally,
there has also been discussion of linking the use of central ventilation and air conditioning
(“HVAC”) systems to mold breeding grounds. See Nakano, supra note 45, at 10 (noting that
when there is a leak in an air conditioning unit, the constant water intrusion combined with
the poor ventilation encourages mold growth).
80
Heady, supra note 78, at 1087. The author states that with the increase in poorly
designed buildings combined with a longer work week for most Americans, more and
more people are at risk to mold exposure. Id.
81
TOXIC MOLD LITIGATION 3, 2 (Raymund King ed., ABA 2003). These building-induced
effects were described publicly as the sick building syndrome (“SBS”). Id. The term sick
building syndrome is used to describe situations in which building occupants experience
health effects that appear to be linked to their time spent in a building, but no real illness or
cause can be specifically identified. Id.; EPA, Indoor Air Facts No. 4: Sick Building Syndrome,
Feb. 1991, available at http://www.epa.gov/iaq/pubs/sbs.html.
82
See John Parker Sweeney & Sheri A. Mullikin, The “Mold Monster”: Myth or Menace?,
MEALEY’S LITIG. REP. MOLD 19 (2001) (noting that the majority of toxic mold suits were in
California, Texas, the Southwest, and the Great Lake States, where the warm and moist
climate contributes to the growth of mold).
83
See Allison v. Fire Ins. Exch., 98 S.W.3d 227 (Tex. App. 2003).
84
Id.
85
Id. at 248. The Plaintiffs first noticed mold in the home after a hardwood floor buckled
due to a water leak. Id. at 234. Plaintiffs notified their insurance company, Fire Insurance
Exchange, of the leak and subsequent mold growth, prompting the insurer to send
someone to investigate. Id. The plaintiff’s contractors recommended that the entire floor
be replaced to rid the home of mold. Id. However, the insurance adjuster claimed the
mold damage was from an older leak and offered to repair only the portions of the floor
damaged by water and mold. Id. About ten years after the first leak and initial mold
outbreak, plaintiffs hired a mold expert to analyze the mold growth in their home. Id. at
235. The expert advised plaintiffs to move out of the home immediately due to a buildup
of stachybotrys mold. Id. Thus, plaintiffs brought suit against the insurance company
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Court of Appeals ruled for the plaintiffs and awarded damages based on
the insurer’s failure to adhere to the insurance contract.86 Consequently,
mold suits based on property damage and insurers’ bad faith to remedy
the problem increased drastically in the past decade.87 Major issues that
arise and ultimately may lead to a denial of a plaintiff’s claim are the lack
of legislative guidelines that set forth safety standards for mold exposure
and failure to show causation due to the exclusion of expert testimony
during trial.88
In response to the increase in mold growth issues, some states, along
with the federal government, passed legislation setting forth guidelines
and safety standards for mold exposure.89 California’s Toxic Mold
Protection Act was the first piece of legislation enacted to address mold
exposure by itself.90 The purpose of California’s Toxic Mold Protection
claiming that the insurer’s delay forced them to endure extended exposure to mold,
resulting in illness. Id. at 236. Illnesses claimed were asthma, memory loss, and fatigue. Id.
86
See id. at 227. See also Melinda Wood Allen, Texas Lassoes Mold Industry, CLAIMS MAG.,
Aug. 2003, at 14 (noting that the case has been heard on appeal more than one time and the
verdict in plaintiff’s favor has been reduced on each appeal). Despite the reduction, Allison
revealed that plaintiffs can win mold contamination suits. Id.
87
See supra notes 65-67 (noting case law involving property damage allegedly caused by
mold).
88
See discussion infra Part II.C (discussing how failure to prove causation is damaging to
a plaintiff’s mold exposure claim).
89
See Current Mold Legislation, MOLD REPORTER, May 2003, available at
http://moldreporter.org/vol2no6/currMoldLeg. California’s Toxic Mold Act of 2001
became the model for many states to follow. Id. Maryland developed a Task Force on
Indoor Air Quality in response to mold exposure across the state. Id. Similar legislation
also passed in Pennsylvania, New Jersey, and New York. Id. New York legislation, the
Toxic Mold Protection Act, directs the state Department of Health to create a task force to
decide exposure limits for indoor environments. Id. Other states, such as Massachusetts,
also have legislation that directs the state to create a task force to decide mold exposure
limits for indoor environments. MASS. GEN. LAWS. ch. 12669 § 3 (2002). The Massachusetts
Toxic Mold Protection Act states that the task force shall:
1.
[A]dopt permissible exposure limits to mold for indoor
environments that avoid adverse effects on health, with an
adequate margin for safety, and avoid any significant risk to
public health…
2.
Develop mandates for removal and assessment for key mycotoxin
producing molds such as Stachybotrys, Chaetomoim,
Aspergillus…
Id.
90
CAL. HEALTH & SAFETY CODE §§ 26100-26157 (Deering 2001). California’s Toxic Mold
Protection Act (“TMPA”) and Real Property Disclosure Provision, codified at CAL. CIV.
CODE § 1102.6, went into effect January 1, 2002. Jany Jacob, Toxic Black Mold-The Next
Asbestos, SEATTLE DAILY J., July 25, 2002, available at http://www.djc.com/news/en/
11135666.html. The Toxic Mold Protection Act establishes permissible mold exposure
limits in the state of California. CAL. HEALTH & SAFETY CODE § 26102. Section 26102 of the
Act reads: “The department shall consider the feasibility of adopting permissible exposure
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Act was to direct the California Department of Health Services to
establish permissible mold exposure limits.91 Legislation setting forth
permissible exposure limits of mold and establishing guidelines for
states to follow brings together policy concerns of fairness, integrity, and
efficiency which were previously non-existent.92
limits to mold in indoor environments.” Id. Section 26103 of the TMPA describes the
adoption of permissible exposure limits to mold in indoor environments. CAL. HEALTH &
SAFETY CODE § 26103. Sections 26103(a)(4)-(b)(1) read:
(a) If the department finds that adopting permissible exposure limits
to mold in indoor environments is feasible, the department, in
consultation with the task force convened pursuant to Section
26101.7, shall:
(1) Adopt permissible exposure limits to mold for indoor
environments that avoid adverse effects on health, with an
adequate margin of safety, and avoid any significant risk to
public health.
(2) Notwithstanding paragraph (1), balance the protection of
public health with technological and economic feasibility
when it adopts permissible exposure limits.
(3) Utilize and include the latest scientific data or existing
standards adopted by authoritative bodies.
(4) Develop permissible exposure limits that target the general
population.
(b) The department shall consider all of the following criteria when it
adopts permissible exposure limits for molds in indoor
environments:
(1) The adverse health effects of exposure to molds on the
general population, including specific effects on members of
subgroups that comprise a meaningful portion of the general
population, which may include infants, children age 6 years
and under, pregnant women, the elderly, asthmatics, allergic
individuals, immune compromised individuals, or other
subgroups that are identifiable as being at greater risk of
adverse health effects than the general population when
exposed to molds.
Id. Section 26101(e) defines “department” as follows: “the State Department of Health
Services, designated as the lead agency in the adoption of permissible exposure limits to
mold in indoor environments, mold identification and remediation efforts, and the
development of guidelines for the determination of what constitutes mold infestation.”
CAL. HEALTH & SAFETY CODE § 26101.
91
CAL. HEALTH & SAFETY CODE §§ 26100-26157. Section 26147 of the Toxic Mold
Protection Act requires residential landlords with knowledge or notice of mold in the
building to provide written disclosure to both prospective and current tenants of the
presence of mold. CAL. HEALTH & SAFETY CODE § 26147. Section 26143 of the Toxic Mold
Protection Act discusses commercial and industrial landlords with knowledge of or notice
of the presence of mold in the building who have an affirmative duty, within a reasonable
time, to remediate it. CAL. HEALTH & SAFETY CODE § 26143.
92
See discussion infra Part III.C (arguing policy reasons such as fairness and integrity
call for more scientific expert testimony to be admitted into evidence).
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On the federal level, Michigan Representative, John Conyers, Jr.,
introduced House Bill 5040, providing national guidelines for mold
inspection and remediation.93
The bill called for the CDC, the
Environmental Protection Agency (“EPA”), and the National Institutes
of Health (“NIH”) to study the health effects of mold growth and
establish standards of acceptable levels of mold.94 House Bill 5040 did
not pass the introduction level however, and the same bill was
reintroduced to Congress on March 13, 2003, as House Bill 1268, only to
receive the same fate.95 Currently, there is no federal legislation setting
guidelines for mold inspection and remediation.96
The introduction of toxic mold legislation on both the state and
federal level and the release of federal administrative guidelines,
suggests a realization among government officials that mold is indeed a
threat to human health.97 However, due to the lack of universal
guidelines and nationally accepted standards concerning safe levels of
mold exposure, it is very difficult for plaintiffs to establish causation in
mold exposure cases.98
C. Causation Problems Preventing Admissibility of Scientific Expert
Testimony
Alleged mold-exposed plaintiffs have to prove injury and causation
in order to prevail.99 Plaintiffs in a mold exposure suit must present a
H.R. 5040, 107th Cong. (2002).
Id. at § 102. The bill also included a federal toxic mold insurance program, section 602,
and a tax credit for toxic mold inspection and remediation, section 501. Id.
95
H.R. 1268, 108th Cong. (2003). Following H.R. 1268, there has been no major federal
legislative action proposing mold inspection and remediation guidelines. 108 Bill Tracking,
H.R. 1268, available in LEXIS, LESIG library, BLTRCK file. Various government agencies
have provided guidelines relating to mold. The EPA provides information that serves as
an educational background on mold. See EPA, Mold Remediation in Schools and Commercial
Buildings (2001), http://www.epa.gov/iaq/molds/index.html [hereinafter EPA #2]. The
EPA guidelines focus mainly on discussing remediation guidelines for domestic and
commercial buildings. Id. As of September 2006, the EPA has not provided national
guidelines for mold detection, investigation, or evaluation. Id.
96
Congress Takes on Killer Mold, ABC NEWS, May 9, 2006, http://abcnews.go.com/US/
story?id=91026&page=1. There are no current federal standards for mold risks. Id.
97
See supra Part II.A (noting the health problems associated with mold).
98
See Chenise S. Kanemoto, Scientific Expert Admissibility in Mold Exposure Litigation:
Establishing Reliability of Methodologies in Light of Hawaii’s Evidentiary Standard, 26 U. HAW. L.
REV. 99, 110 (2003) (noting that in order to establish causation in mold exposure cases,
plaintiffs must use expert testimony).
99
See supra note 65; see also Walter J. Andrews et al., Daubert v. Merrell Dow
Pharmaceuticals Provides Key Challenge to Mold Injury Causation Evidence, SG004 ALI-ABA 19,
27 (2001); Elizabeth L. Perry, Why Fear the Fungus? Why Toxic Mold Is and Is Not the Next Big
Toxic Tort, 52 BUFF. L. REV. 257 (2004).
93
94
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prima facie case of negligence in order to establish liability for injuries.100
This includes proving negligence on behalf of the defendant in allowing
moisture to intrude and proving the moisture resulted in mold growth,
thus causing damages or injuries.101 Scientific expert testimony is the
only way for plaintiffs to associate mold exposure with the alleged
injury; thus, it is important for plaintiffs to have expert testimony
admitted in order to prove causation, both general and specific.102
However, defendants have been successful at excluding scientific expert
testimony.103
100
See, e.g., Mondelli v. Kendel Homes Corp., 631 N.W.2d 846, 852 (Neb. 2001)
(discussing how plaintiffs have to show the elements of negligence to prove causation in a
mold construction defect case). The elements of negligence are: (1) duty; (2) breach; (3)
causation; and (4) damages. WILLIAM L. PROSSER & PAGE KEETON, PROSSER & KEETON ON
THE LAW OF TORTS § 30, 164-65 (5th ed. 1984).
101
Cross, supra note 49, at 32. The plaintiff has to prove that the mold contamination was
in fact the cause of the personal injuries being claimed. Id.
102
See Blundell, supra note 42, at 394-95. Causation in a mold exposure case requires
proof of general and specific causation. Id. See also Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706, 714 (Tex. 1997). General causation is proven when a plaintiff shows that
the mold at issue is capable of causing the injuries from which the plaintiff suffers. Id.; cf.
In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1133 (9th Cir. 2002). Specific
causation is proven when a plaintiff proves that the mold actually entered the plaintiff’s
body and therefore contributed to the plaintiff’s injuries. Id. See also Havner, 953 S.W.2d at
714. “General causation is whether a substance is capable of causing a particular injury or
condition in the general population, while specific causation is whether a substance caused
a particular individual’s injury.” Id. Epidemiology is the most common used scientific
method of establishing general causation in the toxic torts context. Raad et al.,
Epidemiology, Molecular Mycology, and Environmental Source of Fusarium Infection in Patients
with Cancer, INFECTION CONTROL HOSPITAL EPIDEMIOLOGY, Sept. 2002, at 532-37.
Epidemiology is the study of the occurrence of disease in populations. Id. Courts have
consistently and universally agreed that epidemiology is the most relevant type of evidence
in toxic tort cases. MICHAEL D. GREEN ET AL., REFERENCE MANUAL ON SCI. EVID. 333, 335
(2d. ed. 2000). Epidemiological studies are used to demonstrate that exposure to a
particular toxin increases the risk of a particular injury. Raad supra note 102, at 532-37.
103
See, e.g., Nat’l Bank of Commerce v. Associated Milk Producers, Inc., 22 F. Supp. 2d
942, 984 (E.D. Ark. 1998) (exhibiting the district court’s exclusion of plaintiff’s experts from
testifying, thereby dismissing plaintiff’s complaint for lack of causation); see also Geffcken
v. D’Andrea, 137 Cal. App. 4th 1298 (Cal. Ct. App. 2006) (involving a claim alleging
exposure to toxic molds in plaintiff’s residence and place of work). In Geffken, Superior
Court of California excluded the scientific evidence offered by plaintiff’s experts and
thereby entered judgment in favor of defendants. Geffcken, 137 Cal. App. 4th at 1312. The
court held that the expert’s testimony that mycotoxins had caused plaintiffs’ ailments was
speculative and conjectural, and thus inadmissible. Id. at 1311. The trial court excluded the
expert testimony based on two reasons: “[F]irst, it found that ‘he is not qualified to express
any relevant opinions.’” Second, it impliedly found that there was no reasonable basis for
his opinion that the exposure to mycotoxins had caused appellants’ ailments. Id. The court
concluded that the expert was unable to establish that any of the information presented
would have any evidentiary value, and thus the court was not abusing discretion by
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When expert testimony is excluded from evidence as a manner to
prove causation, the lack of evidence prevents mold-exposed plaintiffs
from bringing potentially valid claims before the court.104 Specific
causation is difficult to meet without scientific evidence, and plaintiffs
cannot prevail without the necessary causal link between mold
mycotoxins and disease.105 In order to prove causation, plaintiffs are
forced to rely on circumstantial evidence coupled with a diagnosis of
symptoms associated with mold exposure.106 In order to establish
causation based on circumstantial evidence, plaintiffs in mold exposure
cases must use expert testimony.107 Therefore, understanding the Rules
of Evidence and the relevant judge-made law governing the admission
of expert testimony is important when evaluating a toxic mold case.108
This Part begins with a discussion of the relevant rules in the FRE
regarding expert testimony.109 Part II.C.2 discusses the evolution of the
federal common law regarding expert testimony.110 Part II.C.3 concludes
excluding this evidence. Id. When a judge grants a defendant’s Motion in Limine to
exclude expert witnesses from testifying as to causation, the case is more than likely subject
to summary judgment for lack of causation. Id.
104
See Danielle Conway-Jones, Factual Causation in Toxic Tort Litigation: A Philosophical
View of Proof and Certainty in Uncertain Disciplines, 35 U. RICH. L. REV. 875, 928 (2002)
(arguing “the toxic tort plaintiff should not be penalized unjustly for the inherent
uncertainty of medical diagnoses”). Scientific expert testimony provided by toxic tort
plaintiffs should be admissible to support plaintiff’s causation argument “so long as such
diagnoses are based on medically valid techniques or methodologies.” Id. See also Michael
D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy
of Agent Orange and Bendectin Litigation, 86 NW. U. L. REV 643, 681 (1992) (discussing the
harsh evidentiary threshold currently in place regarding expert witness testimony).
105
See EPA #2, supra note 95 (noting more studies are needed to get a clear picture of the
health effects related to mycotoxins). But see Mondelli, 631 N.W.2d at 856 (concluding that
“[t]he list of publications which have addressed the presence of microbiological organisms
and their relationship to asthma and allergies showed that the scientific community has
generally accepted the principle that a connection exists between the presence of mold and
health.”).
106
See New Haverford P’Ship v. Stroot, 772 A.2d 792, 796 (Del. 2001) (holding expert
testimony as to the excessive presence of mold in plaintiff’s home and the causation thereof
was properly admitted).
107
See supra notes 102-04 and accompanying text (discussing the need for expert
testimony to prove causation in mold exposure cases).
108
See discussion infra Parts II.C.1-2 (explaining federal rules and case law governing
expert testing).
109
See discussion infra Part II.C.1 (discussing the background of the Federal Rules
regarding scientific expert testimony).
110
See discussion infra Part II.C.2 (explaining United States Supreme Court case law
establishing guidelines for expert testimony).
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with a jurisdictional comparison of the guidelines courts use when
analyzing expert testimony.111
1.
Federal Rules of Evidence (“FRE”)
When uncertainty exists in toxic tort cases, the legal system allows
for scientific expert testimony to provide the court with scientific or
technical knowledge necessary to make factual determinations.112
Specifically, Rule 702 of the FRE governs the admissibility of expert
testimony at trial.113 The primary consideration in admitting expert
testimony is whether it will assist the trier of fact in understanding and
determining the facts of the case.114 The FRE also provides the trial judge
with the discretionary role of making the preliminary determination of
whether an expert is qualified.115 Combining the broad language and the
discretionary nature of the FRE demonstrates that the FRE regarding
expert admissibility remain open to judicial interpretation.116
111
See discussion infra Part II.C.3 (comparing Frye and Daubert guidelines for expert
testimony).
112
See FED. R. EVID. 702.
113
Id. Specifically, the Federal Rules of Evidence provide:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
Id. In order to fully understand the Federal Rules of Evidence, FRE 702 should be read
with FRE 703. FRE 703 explains that if the underlying facts or data are “of a type
reasonably relied upon by experts in the particular field in forming opinions or inferences,”
then the underlying facts or data do not need to be admitted in order for the expert to be
able to testify. FED. R. EVID. 703.
114
See FED. R. EVID. 702. A Note from the Advisory Committee states:
Whether the situation is proper for the use of expert testimony is to be
determined on how well the evidence assists the trier. There is no
more certain test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best possible degree the
particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.
Id.
115
FED. R. EVID. 104(a). FRE 104(a) states: “Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the admissibility of
evidence shall be determined by the court. . . “ Id.
116
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); see also, Richard
Langerman, Neurocognitive Sequelae of Toxigenic Mold: Dealing with the Frye/Daubert
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The Evolution of Federal Common Law: Frye v. United States
The stimulus for the federal expert admissibility standard was the
1923 case of Frye v. United States.117 Frye addressed the admissibility of
scientific expert testimony regarding a “systolic blood pressure
deception test[,]” or lie detector test.118 The United States Court of
Appeals for the District of Columbia held that the appropriate test for
admissibility of scientific evidence is whether the evidence is a scientific
technique “sufficiently established to have gained general acceptance in
the particular field in which it belongs.”119 For nearly seventy years, the
majority of federal and state jurisdictions followed the “general
acceptance” test established in Frye.120
Even with the adoption of the FRE in 1975, some courts remain in
dispute as to whether or not the expert admissibility rules supersede the
“general acceptance” idea developed in Frye.121 The broad standard of
Challenge, ATLA-CLE 449 (2004) (discussing the decision in Daubert which allowed trial
judges to assess the methods and principles employed by experts).
117
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
118
Id. In 1923, the offered lie detector test was considered to be novel science. Id. at 1014.
The decision states, “[c]ounsel for defendant, in their able presentation of the novel
question involved, correctly state in their brief that no cases directly in [sic] point have been
found.” Id.
119
See id. (holding that the lie detector test at issue had not gained enough scientific
recognition, or “general acceptance” among the scientific community to justify admission).
See also People v. Kelly, 549 P.2d 1240 (Cal. 1976) (holding that experts testifying must be
qualified to do so and when experts testify, the correct scientific procedures must be used
in the particular case). Under the Kelly-Frye rule, the expert testifying about a new scientific
methodology must satisfy a three part test: “[f]irst, that the reliability of the new technique
has gained general acceptance in the relevant scientific community, second, that the expert
testifying to that effect is qualified to do so, and, third, that correct scientific procedures
were used in the particular case.” Geffcken v. D’Andrea, 137 Cal. App. 4th 1298, 1309 (Cal.
Ct. App. 2006).
120
Daubert, 509 U.S. at 585. However, the primary criticism of the Frye test is that it is
overly restrictive in admitting testimony based only on the theory of “general acceptance.”
Id. See Brief for Physicians, Scientists, and Historians of Science as Amici Curiae
Supporting Respondents at 3, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (No.
92-102). “The quality of a scientific approach or opinion depends on the strength of its
factual premises and on the depth and consistency of its reasoning, not on its appearance in
a particular journal or no it popularity among other scientists.” Id. Although there has
been much controversy surrounding the application of the “general acceptance” test, many
jurisdictions continue to follow the test, including the Ninth Circuit. Daubert, 509 U.S. at
584; see also Perry, supra note 99, at 289 (discussing Frye jurisdictions, including: New York,
Arizona, California, Florida, Maryland, Michigan, Nebraska, Pennsylvania, Washington,
Alaska, Colorado, Illinois, Kansas, and Missouri).
121
Daubert, 509 U.S. at 587. Compare U.S. v. Williams, 583 F.2d 1194 (2d Cir. 1978) (noting
that Frye is superseded by the FRE), with Christopher v. Allied-Signal Corp., 939 F.2d 1106,
1111 (5th Cir. 1991) (holding that Frye and the Rules coexist with each other).
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the Federal Rules of Evidence, coupled with the restrictive standards set
forth in Frye, resulted in judicial discourse and much uncertainty as to
what standard to use, ultimately resulting in the landmark United States
Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals.122
3.
The Controversy of Expert Admissibility Testing: Frye vs. Daubert
Daubert is the breakthrough federal case discussing scientific expert
admissibility standards.123 Exactly seventy years after Frye, the United
States Supreme Court found an occasion to analyze the Frye test and, in
doing so, the Court overruled Frye as the appropriate test in determining
admissibility of expert witnesses.124 In Daubert, the Court found that the
adoption of the Federal Rules of Evidence superseded the “general
acceptance” standard as the main criterion for determining expert
testimony admissibility.125 The Court identified several factors that trial
courts should consider in determining whether expert testimony is
reliable and admissible.126 The Court proposed the following factors,
which are not intended to be exhaustive:
(1) whether or not the theory has been tested or proven
to be valid;
(2) whether the theory has been subject to peer review
and/or publication;
(3) whether or not there is a known or potential rate of
error and if there are any relevant governing
standards; and
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
See Daubert, 509 U.S. at 579; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
(holding expert admissibility standards developed in Daubert apply not only to scientific
expert testimony, but to all types of expert testimony).
124
See Daubert, 509 U.S. at 585 (holding that “‘[g]eneral acceptance’ is not a necessary
precondition to the admissibility of scientific evidence under the Federal Rules of
Evidence”).
125
Id. at 588. The Court noted that to “establish a standard of evidentiary reliability[,]”
each step in the expert’s reasoning must be supported by “good grounds.” Id. at 589-90. In
Daubert, plaintiffs alleged a prescription anti-nausea drug ingested by plaintiffs caused
birth defects in their children. Id. at 582. Plaintiffs wanted to admit certain epidemiological
evidence indicating the prescription drug was capable of causing birth defects. Id.
126
See id. at 593-94 (basically using the “general acceptance” test alongside three other
factors: testability, peer review and publication, and potential rate of error). Not only must
the expert’s testimony be reliable, it must be relevant. Id. at 593; see also United States v.
Downing, 753 F.2d 1224, 1237 (3rd Cir. 1985) (noting that there must be a logical connection
between the expert’s theory and the expert’s conclusion).
122
123
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(4) whether or not the theory or technique has been
generally accepted as valid by the relevant scientific
community.127
The Court in Daubert maintained that the FRE’s specific limitation of
testimony to “scientific knowledge” considers regulation of the subjects
and theories about which an expert may testify.128 Yet, the Court
qualified its definition of “scientific knowledge” to some extent by
concluding that the subject of scientific testimony does not have to be
known with certainty because there are no real certainties in science.129
Therefore, the Court in Daubert shifted the emphasis from “general
acceptance” in the scientific community established in Frye to the
reliability of the underlying test or technique.130
While federal courts are bound by the FRE and United States
Supreme Court decisions interpreting the Rules, state courts remain
127
See Daubert, 509 U.S. at 593-94. In addition to the criteria set forth in Daubert, courts
have also considered other factors as relevant in assessing the reliability of expert
testimony:
(1) whether the expert is proposing to testify about matters growing
directly out of independent research he or she has conducted or
whether the opinion was developed expressly for purposes of
testifying;
(2) whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion;
(3) whether the expert has adequately accounted for obvious
alternative explanations;
(4) whether the expert is being as careful as he would be in his
regular professional work; and
(5) whether the field of expertise claimed by the expert is known to
reach reliable results for the type of opinion offered.
FED. R. EVID. 702, Advisory Committee’s note. See Claar v. Burlington N.R.R., 29 F.3d 499
(9th Cir. 1994) (analyzing under the third prong above, testimony was excluded when the
expert failed to consider other obvious causes for the plaintiff’s condition); see also Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (in discussing the second prong above, the Court
held that in some cases a trial court “may conclude that there is simply too great an
analytical gap between the data and the opinion proffered”). But see Ambrosini v.
Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (presenting the possibility of some un-eliminated
causes being a question of a weight, so long as the most obvious causes have been
considered and reasonably ruled out by the expert).
128
See Daubert, 509 U.S. at 589. The requirement in FRE 702 that an expert’s testimony be
relevant to “scientific knowledge” establishes a standard of reliability to be enforced by
trial judges. Id. at 590.
129
Id. at 590. The Court thus declared that “[t]he focus, of course must be solely on
principles and methodology, not on the conclusions that they generate.” Id. at 595.
130
See id. at 590.
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divided as to what evidentiary standard applies to scientific experts.131
Since the Supreme Court’s decision in Daubert, some states continue to
follow Frye.132 Although Frye remains the minority view, a number of
state trials are still carried out in Frye jurisdictions.133 Courts in Frye
jurisdictions do not see a need to change the evidentiary standards to
those set forth in Daubert.134 In sum, due to the inconsistent use of
evidentiary tests in Frye and Daubert jurisdictions, more toxic mold cases
relying on scientific expert testimony continue to be decided
inconsistently.135 The inconsistency of toxic mold case verdicts may also
be attributed to the fact that there is no accepted method of scientific
expert testing used to prove causation.136
D. Scientific Expert Testimony in Toxic Mold Cases
The inconsistent nature surrounding toxic mold verdicts is primarily
due to the courts not fully accepting scientific expert testing.137 Courts
exclude certain expert testimony because the testimony does not
convince courts of its reliability and accuracy.138 Part II.D.1 discusses
current mold detection methods, such as environmental air sampling
See Bert Black, Post-Daubert and Joiner Caselaw: The Good, The Bad, and The Ugly, SC33
ALI-ABA 145, 169 (1998) (exhibiting a table that portrays the current status of Daubert and
Frye in United States jurisdictions).
132
See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923); see also Kanemoto, supra note 98, at 116
n.138 (identifying the Frye jurisdictions as follows: Alabama, Arizona, California, Colorado,
Florida, Illinois, Kansas, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nevada,
New Jersey, New York, Pennsylvania, and Washington). Id.
133
Kanemoto, supra note 98, at 116-17. Despite the establishment of the Daubert standard
regarding admissibility of scientific evidence, there are some jurisdictions that still carry
out Frye hearings to determine if the evidence offered by experts should be admitted as
necessary to prove causation, or if the evidence is overly prejudicial and thus should not
admitted. Id.
134
See State v. Copeland, 922 P.2d 1304, 1314 (Wash. 1996) (discussing that the
application of Frye “has not been so difficult . . . as to call for its abandonment”); see also
Dow Chem. Co. v. Mahlum, 970 P.2d 98, 108 n.3 (Nev. 1998) (holding that “we do not
presently perceive a need to adopt Daubert.”).
135
Louis A. Jacobs, Giving Lie to Antiquated Notions About Scientific Evidence, 22 AM. J.
TRIAL ADVOC. 507 (1999). Daubert hearings–which were created for courts to determine the
soundness of an expert’s opinion—add confusion and inconsistency. Id. A Daubert hearing
was meant to be a manageable evidentiary hearing where the trial judge could outline and
evaluate the qualifications of an expert prior to trial. Id. at 537-38. These hearings are not
required in every case or for every expert. Id. at 540.
136
See discussion infra Part II.D (discussing the various tests used in mold detection
testing).
137
See discussion infra Part II.D.1 (noting inconsistent court decisions involving certain
mold detection testing).
138
See discussion infra Part II.D.1 (stating reasons why courts exclude mold detection
testing methods such as air sampling and antibody testing).
131
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and antibody testing, and explains why both tests fail to consistently
convince courts of their reliability.139 Part II.D.2 concludes with a
discussion of a new method of testing, considered to be reliable and
accurate in other areas of science, thus providing positive support for the
use of this testing in toxic mold detection.140
1.
Common Mold Exposure Tests Used Today
The key for any plaintiff’s claim in a toxic mold exposure case is the
admissibility of expert testimony to prove causation.141 Plaintiffs’
experts commonly assert that mold exposure intensifies existing medical
conditions such as asthma or allergies.142 The two methods commonly
used to establish causation in mold cases are environmental sampling
and the combination of antibody and blood serology testing.143
Environmental sampling testing supports an argument that
excessive mold levels probably contributed to the plaintiff’s injuries.144
When samples are taken, either through surface sampling or air
sampling, the goal is to trap mold spores so they may be identified.145
Once the mold is captured and identified, mycotoxins can then be
See discussion infra Part II.D.1 (describing popular methods of mold detection testing
used by many experts).
140
See discussion infra Part II.D.2 (explaining DNA extraction testing).
141
See Elmer, supra note 32, at 112 (discussing the fact that a mold-exposed plaintiff will
not have a valid claim of toxic mold exposure without proof of causation).
142
See, e.g., New Haverford P’ship v. Stroot, 772 A.2d 792, 796 (Del. 2001) (noting that
plaintiff’s expert argued the increased severity of plaintiff’s asthma was due to the high
concentration of toxic mold in the home).
143
See Geffcken v. D’Andrea, 137 Cal. App. 4th 1298, 1301 (Cal. Ct. App. 2006) (noting
plaintiff’s experts used environmental sampling data and a mycotoxin antibody test along
with a blood serology test to prove causation in a mold exposure case); see also Whisnant v.
United States, No. C03-5121, 3 (W.D. Wash. 2006) (conferring that plaintiff’s expert used a
blood serology test to prove plaintiff had an allergic response to mold exposure). See
generally Andrews, supra note 99, at 41. A process called differential diagnosis is also used
in some mold detection cases. Id. In differential diagnosis, a physician examines a patient,
takes the medical history of the patient, does testing as indicated from the exam and
history, and then considers and eliminates alternative causes of illness. Id. As a
methodology, and not applied to a single patient, differential diagnosis is recognized as
reliable in the medical field. Id. Differential diagnosis is known as the “basic method of
internal medicine.” In re Paoli, 35 F.3d 717, 755 (3rd Cir. 1994).
144
Kanemoto, supra note 98, at 129 nn. 245-46. Proper environmental testing involves an
analysis of surface and air sampling. Id. Surface sampling is done by swabbing a surface
of visible mold. Id. If mold is present, then air sampling is usually not necessary for use in
identification of mold in a suspected area. Id. Air sampling is accomplished by collecting
mold spores on Petri dishes and then incubating them in a laboratory so that the organisms
captured can grow and be identified. Id.
145
Id. at 130.
139
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detected.146
Despite the practical and straightforward nature of
environmental sampling, the testing is not consistently admitted in toxic
mold exposure cases.147 Problems courts find with environmental
sampling usually include poor handling of the data and a lack of real
probative value when testing purely for mycotoxin presence.148 The fact
of the matter is that “‘[i]t does not necessarily follow from the mere
presence of a toxigenic species [of mold] that mycotoxins are present.’”149
The second method used to establish causation in toxic mold
exposure cases is antibody and blood serology testing.150 Serology is a
blood test used to detect the presence of antibodies against a
microorganism.151 Some experts use this type of testing to detect the
presence of mycotoxins in exposed plaintiffs.152 The problem associated
with antibody testing is that courts rule that the testing method is not
generally accepted in the scientific community.153 The inconsistencies
See Geffcken, 137 Cal. App. 4th at 1308 (stating that when mycotoxins are shown to be
present, plaintiffs find it much easier to prove causation).
147
See id. (holding that the probative value of expert’s environmental sampling testing
was minimal at best, because it failed to show the presence of mycotoxins at plaintiff’s
residence). The California Appellate Court noted, “even if the presence of mold spores is
assumed, [appellants] cannot present competent or generally accepted scientific evidence
establishing the presence of mycotoxins from such spores.” Id. at 1306. The court went on
to discuss the fact that if the expert wished to test for mycotoxins, mycotoxin testing such
as “gas chromatography” and “mass spectrometry” should have been conducted. Id. at
1308. The court used the Frye test to exclude the expert testimony noting, “these scientific
techniques failed to satisfy the Kelly-Frye requirements.” Id. at 1312. But see New Haverford
P’Ship, 772 A.2d at 800 (admitting testimony on environmental sampling results despite the
fact that minimal outdoor samples were taken for comparison). The Delaware Supreme
Court concluded that “the failure to conduct extensive baseline testing goes to the weight
of the experts’ opinions, not their admissibility.” Id.
148
Geffcken, 137 Cal. App. 4th at 1308. In Geffcken, the expert apparently mishandled the
data and the court concluded “there’s no direct way to match the [sample] locations with
the reported results.” Id.
149
Id.
150
See infra note 152 (discussing cases where experts used antibody testing to prove
causation).
151
Whisnant v. United States., No. C03-5121, No. C03-5121 FDB, 2006 U.S. Dist. LEXIS
80312, at *2 (W.D. Wash. Oct. 24, 2006). There is only one laboratory in the United States
that conducts a mycotoxin antibody test. Id.
152
See Whisnant, No. C03-5121 FDB, 2006 U.S. Dist. LEXIS 80312, at *3 (W.D. Wash. Oct.
24, 2006) (noting that expert used antibody blood testing in a mold exposure case); see also
Geffcken, 137 Cal. App. 4th at 1309 (exhibiting the use of antibody blood serology testing in
a toxic mold exposure case).
153
See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). See also Geffcken, 137 Cal.
App. 4th. at 1309. The court held in Geffcken that the mycotoxin antibody test was
unreliable and not generally accepted in the scientific community “as a valid technique to
determine human exposure to mycotoxins.” Id. at 1310. Also, the court held that the
antibody testing has not gained acceptance in the scientific community as a valid technique
146
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surrounding the admissibility of environmental sampling and antibody
and blood serology testing evidence has led to new mold exposure
testing.154
2.
The Emergence of New Toxic Mold Detection Testing
In an effort to meet plaintiffs’ needs for a mold exposure test that
consistently satisfies admissibility standards, scientific experts are
developing a more reliable, specific, and rapid method of detecting the
presence of toxic mold in humans.155 Specifically, the new method of
testing detects toxic mold DNA and mycotoxins in human body fluids
and tissues.156 The purpose behind the new testing is to identify
mycotoxins:
in human tissue or body fluids, the identification of
mycotoxins may serve as a potential diagnostic method
to 1) identify patients at risk for developing disease
states related to mold infections, or 2) rapidly determine
the cause of diseases related to mold infections so that
effective treatment regimens can be developed for
patients exposed to molds and experiencing symptoms
resulting from mold infection.157
DNA and mycotoxin extraction testing involves identifying specific
toxic mold species in patient tissue or body fluids.158 The new testing
to assess human exposure to toxic mold. Id. The court held that lack of validation of the
testing led to its inadmissibility. Id.
154
See discussion infra Part II.D.2 (discussing the evolution of DNA extraction testing
used to locate toxic mold DNA in human tissue and body fluids).
155
See RealTime, supra note 56, at 4 (describing the accuracy and reliability of DNA
extraction testing when used in detecting mold DNA in human tissue).
156
See Kaisu Jalava et al., Semiquantitative Detection by Real-Time PCR of Aspergillus
Fumigatus in Bronchoalveolar Lavage Fluids and Tissue Biopsy Specimens from Patients with
Invasive Aspergillosis, 41 J. OF CLINICAL MICROBIOLOGY 4304 (Sept. 2003); see also, Cathal E.
O’Sullivan et. al., Development and Validation of a Quantitative Real-Time PCR Assay Using
Fluorescence Resonance Energy Transfer. . . Pulmonary Aspergillosis, 41 J. OF CLINICAL
MICROBIOLOGY 5676 (Dec. 2003).
157
See RealTime, supra note 56, at 3. The testing provides certain methods for detecting
and identifying in human tissues and body fluids, “fungal DNA from fungal spores, and 2)
mycotoxins produced by fungi.” Id. at 4. Supplementing detection testing, is also
mycotoxin and DNA extraction procedures for human tissue and body fluids. Id.
158
Id. at 4. The method consists of extracting and recovering DNA of the mold species
from the human tissue or body fluid. Id. Next, identification of the mold species takes
place. Id. This is done by amplifying the DNA, probing the DNA, then specifically
identifying the mold species. Id. RealTime Laboratories notes that although the idea of
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involves a process of extracting, recovering, and identifying
mycotoxins.159 The testing can detect up to twenty-four species of
molds.160 In theory, the detection testing creates an opportunity to detect
a specific mycotoxin sample.161 Critical to the development of new
testing such as this is the performance of clinical trials, or
experimentation, in other areas of medicine to help facilitate growth of
the test.162
The use of clinical trials is meant to establish an
understanding of how similar testing will work in other areas of
medicine and to provide a basis for the testing to be used in a differential
diagnosis.163 The belief is that pursuing clinical trials in other areas of
medicine will create an opportunity to evaluate mold detection testing in
this capacity.164
In summary, when combining the federal rules regarding
admissibility of scientific expert testimony with toxic mold detection
testing, plaintiffs face obstacles in admitting expert testimony.165 Current
scientific expert testing regarding toxic mold detection does not
consistently convince courts as being an acceptable method to exhibit the
adverse health effects of toxic mold.166 Despite the fact that scientific
testing is not consistently allowed by trial court judges, recent case law
DNA sequencing of mold organisms is an established practice, the DNA probes involved
in this testing are unique. Id.
159
See id. at 5. Body fluids that may be used for these studies include: “urine, nasal
secretions, nasal washes, bronchial lavages, bronchial washes, spinal fluid, sputum, gastric
secretions, seminal fluid, other reproductive tract secretions, lymph fluid, whole blood,
serum, and plasma.” Id. The specific assay used in this testing utilizes “microspheres
(beads) that are coupled to DNA and/or monoclonal antibodies to detect mycotoxin
antigens.” Id. at 6.
160
Id. at 6. This is done by employing the DNA probe and linking the probes to assay
microspheres. Id. The microspheres (beads) allow the linkage of sixteen antibodies to
mycotoxins. Id. The linkages will allow the human samples, which include blood, spinal
fluid, urine, and tissue that have been exposed to toxic mold species to be determined. Id.
The toxic mold species that the test specifically detects are “Aspergillus, Penicillium,
Stachybotrys, and Fusarium.” Id.
161
Id. During the testing, several readings will be available from the microsphere bead
set, creating the capability of having up to 100 unique assays with one single sample. Id.
162
Id. at 7. Studies are currently conducted in four main areas: detecting toxic mold in
Bone Marrow transplant patients, detecting mycotoxins in the muscle of Lateral Sclerosis
patients, detecting mycotoxins in pulmonary fibrosis patients, and detection of mycotoxins
in lung cancer. Id. at 7-8. The tests used in the clinical trials range from Polymerase Chain
Reaction Studies (PCR) to Enzyme Linked Immuno-Sorbant Assay (ELISA). Id.
163
See id. at 8.
164
Id.
165
See discussion supra Part II.C (discussing causation problems plaintiffs face in toxic
mold litigation).
166
See supra Part II.D.1 (noting court decisions excluding air sampling and antibody
testing).
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demonstrates that courts are allowing more expert witnesses to testify in
order to link mold exposure to the resulting injury.167 The emergence of
new mold detection testing, mainly involving the identification of fungal
DNA, will help plaintiffs establish a standard causation test for
determining mold exposure.168 However, the fact that some courts allow
scientific expert testimony while other courts exclude similar testimony
demonstrates the need for a consistent standard for courts to follow
when judging the admittance of expert testimony in toxic mold exposure
cases.169 A consistent standard will also aid juries in understanding the
adverse health effects that toxic mold can have on humans and, thus,
ultimately help plaintiffs have their day in court.170
III. ANALYSIS
When confronted with a toxic mold exposure case, federal and state
courts should admit scientific expert testimony on DNA extraction
testing pursuant to the established admissibility standards.171 Part III.A
begins by differentiating case law between Frye and Daubert jurisdictions
regarding the admissibility of scientific expert testimony in toxic mold
exposure cases.172 Part III.B argues how DNA and mycotoxin extraction
and identification testing will get past federal guidelines regarding
admissibility of scientific expert testimony, specifically using the
methodology of differential diagnosis.173 Finally, Part III.C discusses the
fundamental policies served by allowing scientific expert testimony on
DNA and mycotoxin extraction and identification testing to juries, thus
bypassing the inconsistent discretionary judgment of a trial court
judge.174
167
See supra note 65. See, e.g., Mondelli, 631 N.W.2d at 856. The Nebraska Supreme Court
noted that even though there was no established standard regarding mold levels, “the
scientific community has generally accepted the principle that a connection exists between
the presence of mold and health.” Id.
168
See discussion infra Part III.B (applying DNA extraction testing to mold detection by
proving its reliability and acceptability in other areas of science).
169
See discussion infra Part IV (discussing a possible approach courts could take when
judging scientific expert testimony).
170
See discussion infra Part III.C (arguing juries should have the opportunity to hear
more expert testimony to ensure fairness and integrity in the judicial system).
171
See infra Part III.B (arguing DNA extraction testing is more reliable and accurate than
other mold detection tests).
172
See infra Part III.A (analyzing court decisions in Frye and Daubert jurisdictions).
173
See infra Part III.B (applying DNA extraction testing along with the scientific
methodology of differential diagnosis to prove causation in toxic mold cases).
174
See infra Part III.C (discussing policy reasons for allowing more scientific expert
testimony to reach the jury).
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A. Analysis of Frye and Daubert Case Law
Absent scientific support for toxic mold claims, plaintiffs cannot
satisfy causation or meet their ultimate burdens of proof.175 A plaintiff’s
chance of being fully compensated for personal injuries due to mold
exposure is difficult if the plaintiff does not satisfy the requirements set
forth regarding the admissibility of scientific expert testimony in the
appropriate jurisdiction.176 Relying on different standards for the
admissibility of scientific evidence from state to state causes toxic mold
verdicts to be inconsistent.177 This inconsistency creates difficulty for
plaintiffs attempting to prevail in some jurisdictions over others.178
1.
Plaintiff-Friendly Frye Jurisdictions
Despite the Supreme Court ruling in Daubert, some jurisdictions
continue to follow the scientific expert testimony standard set forth in
Frye.179 For example, in Mondelli v. Kendel Homes Corporation,180 a toxic
mold exposure case decided in a former Frye-friendly jurisdiction, the
Nebraska Supreme Court admitted expert testimony of causation
provided by plaintiffs based on the court’s approval of the expert’s
testimony.181 The court determined that if the expert testimony is
175
Andrews, supra note 99, at 31. Plaintiffs in toxic mold suits have to prove “that the
defendant knew or should have known of the danger mold presented to the plaintiff.” Id.
176
Id.
177
See Perry, supra note 99, at 289. The author discusses how the Supreme Court decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc. rejected the Frye test for admissibility of
scientific evidence. Id. The Court held in Daubert that “something more than ‘general
acceptance’ within the scientific community was required for admissibility.” Id. The Frye
test sets forth the premise that scientific evidence can only be admitted, based on the
discretion of the judge, if it has gained general acceptance in the scientific field. Id.
Daubert, in comparison, holds that scientific evidence be reliable pursuant to empirical
testing, peer review, above average rate of error in scientific testing, as well as general
acceptance in the scientific community. See Daubert, 509 U.S. at 593-94.
178
See discussion infra Parts III.A.1-2 (comparing plaintiff-friendly Frye jurisdictions with
Daubert jurisdictions).
179
See supra note 65. See also Perry, supra note 99, at 289. There are still other states that
follow their own standards for scientific admissibility of evidence, other than the Frye and
Daubert standards. Id. Under Frye, an expert witness must show that he or she has relied
on scientific principles, procedures, and methods that have gained general acceptance in
the field in which the expert is testifying. Frye, 293 F. at 1013.
180
Mondelli v. Kendel Homes Corp., 631 N.W.2d 846 (Neb. 2001).
181
See id. at 856. Plaintiffs brought suit against Kendel Homes Corporation for
construction defects, and also against the city for negligence due to poor inspection and
approval plans of the premises. Id. at 852. But see Schafersman v. Agland Coop, 631
N.W.2d 862, 876 (2001) (holding that for trials commencing on or after October 1, 2001,
Nebraska trial courts would be required to evaluate admissibility of expert testimony
under Daubert). In Mondelli, the court admitted the testimony because of the expert’s
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admitted, “the record would have contained evidence about which
reasonable minds could differ.”182 The court stresses that admitting
expert testing data and allowing the jury to hear certain testimony will
help the court in reaching a more legitimate result.183 The holding in
Mondelli exhibits a relatively lax requirement of admissibility of scientific
evidence in Frye jurisdictions, because the expert only provided proof of
certain publications showing the hazardous health effects of toxic
mold.184
Another Frye jurisdiction case, which utilized a more plaintifffriendly admissibility standard, was Centex-Rooney Construction Co. v.
Martin Co.185 In Centex-Rooney, a Florida district court allowed two
experts to testify about publications concerning the adverse health effects
of mold, both of which the court believed to be generally accepted within
the scientific community on the link between mold and health
concerns.186 Even though Centex-Rooney is a property damage and
construction-related toxic mold case, the court’s ruling illustrates how a
plaintiff can establish causation of adverse health effects from toxic mold
through the use of expert witnesses.187
The two aforementioned cases exhibit that mold experts, testifying in
jurisdictions adhering to the Frye standard, are much more likely to have
their evidence admitted even without a clear scientific link between
mold and human disease.188 When courts utilize the Frye standard, the
general trend seems to be favoring admittance of expert testimony
relating to alleged mold exposure injuries that are general in nature.
familiarity with scientific publications on mold and health hazards. Mondelli, 631 N.W.2d
at 856. The expert testified that toxic mold was a cause of asthma and “rhinitis.” Id. at 855.
The expert did not testify as to any other causal links such as sick building syndrome or
chronic fatigue syndrome. Id. At this time, the court accepted the mold detection testing of
the expert as proof of the cause of asthma, because of the scientific publications on mold
that the expert provided. Id. at 856. Thus, the testimony was “generally accepted” in the
scientific community. Id.
182
Mondelli, 631 N.W.2d at 858.
183
Id. at 858; see also discussion infra Part III.C (arguing that when juries have the
opportunity to hear testimony, fairness and legitimacy is better achieved).
184
Mondelli, 631 N.W.2d at 856. The court came to the conclusion of allowing the expert
testimony without indicating how the evidence would have established general or specific
causation. See Andrews, supra note 99, at 40.
185
Centex-Rooney Constr. Co. v. Martin Co., 706 So. 2d at 20 (Fla. App. 1997).
186
Id. at 26. The court in Centex-Rooney returned an $11.5 million verdict for plaintiffs in
this toxic mold exposure case. Id. at 28.
187
See supra note 65 (demonstrating how plaintiffs can prove causation in toxic mold
cases).
188
See supra note 181 (revealing that courts will allow certain expert testimony without a
clear causal link between mold and human disease).
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However, courts not adhering to the Frye standard require both proof of
specific causation and proof that plaintiffs have experts available to link
mold exposure to the exact personal injuries of the plaintiff.189 As a
result, toxic mold claims involving personal injury are far less successful
in jurisdictions adhering to the Daubert standard.190
2.
Daubert Jurisdictions: When the Testimony Gets Tough
In toxic mold exposure cases, defendants often try everything in
their power to prevent plaintiffs’ expert testimony from being
admitted.191 When defendants challenge expert testimony, the burden
shifts to plaintiffs to have their expert witness demonstrate that “mold is
capable of causing a particular injury or condition in the general
population.”192 Courts, in most cases, strictly enforce the factors set forth
in Daubert when evaluating expert testimony.193
An Arkansas case, National Bank of Commerce v. Associated Milk
Producers,194 highlights a Daubert style analysis in a toxic mold related
personal injury case.195 In National Bank of Commerce, the plaintiff alleged
exposure to mycotoxins from contaminated aerosol milk particles
produced during the cheese-making process at his workplace and was
later diagnosed with laryngeal cancer.196 The plaintiff employed an
expert who brought forth testimony that mycotoxins are found in cattle
feed and can be excreted by cows through milk.197 The defendant
challenged the admissibility of the plaintiff’s expert testimony that the
Elmer, supra note 32, at 114.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (U.S. 1993) (noting trial
courts must act as “gatekeepers,” mandating a demonstration of the reliability and
relevance of an expert’s opinion before it is admitted into evidence); see also discussion infra
Part III.A.2.
191
See supra note 103 and accompanying text. A Daubert challenge to expert testimony,
specifically toxic mold cases, requires experts to prove general and specific causation. See
Blundell, supra note 42, at 395.
192
See Perry, supra note 99, at 291 (citing Patrick J. Perrone et al., Excluding Expert Witness
Testimony in Mold Litigation, MEALEY’S MOLD LITIG. REPORT: MOLD 3 (June 2001)). In mold
litigation, a plaintiff must prove the mold exposure was the direct cause of his or her
injuries. Id. at 295. This is referred to as specific causation. Id.
193
See supra note 127 and accompanying text (stating the factors that scientific expert
testimony must meet in Daubert jurisdictions).
194
Nat’l Bank of Commerce v. Assoc. of Milk Producers, 22 F. Supp. 2d 942 (E.D. Ark.
1998).
195
Id. (plaintiff brought suit against employer blaming his laryngeal cancer on exposure
to mycotoxins while he worked on the production line in a cheese factory).
196
Id. at 945.
197
Id. Mycotoxins are produced by mold that can be found in cattle feed. Id.
189
190
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contaminated milk caused his cancer.198 The Arkansas District Court
used the Daubert analysis, finding that the expert did not identify any
publication, study, or direct scientific evidence demonstrating that
exposure to mycotoxins could cause laryngeal cancer in humans.199 In
the absence of evidence showing a causal link between mycotoxins and
laryngeal cancer, the plaintiff could not establish exposure to toxic
mycotoxins.200 The district court agreed with the defendant’s expert
witness who stated that “there is no scientific basis by which one could
come to an opinion that aflatoxin causes laryngeal cancer to a standard
of a reasonable scientific probability,” and held the plaintiff did not use
an appropriate scientific methodology. 201 The plaintiff in National Bank
of Commerce did not demonstrate that the basis for the causation was
anything more than speculation, which is exactly the sort of expert
testimony Daubert seeks to exclude.202 Thus, when comparing National
Bank of Commerce, decided in a Daubert jurisdiction, to cases decided in
Id.
Id. at 982-83; see also Andrews, supra note 99, at 37. Additionally, the court found a
lack of any indirect scientific evidence demonstrating that exposure to mycotoxins could
cause such cancer. Nat’l Bank of Commerce, 22 F. Supp. 2d at 976.
200
Nat’l Bank of Commerce, 22 F. Supp. 2d at 983. The court noted that, despite the large
amount of research into mycotoxins and reported connections to liver and kidney diseases,
including cancer, “[t]here have been no epidemiological associations reported in the 35
years of study of aflatoxins. . . and laryngeal cancer.” Id. at 956. Plaintiff also brought two
other bases on which to strengthen the claim, a “no threshold” theory and differential
diagnosis. Id at 967. Plaintiff used a “no threshold” theory to exhibit that just a single
carcinogenic molecule could have caused the cancer. Id. at 958. Also, the plaintiff used the
testimony of his expert witness to consider and rule out other possible causes, thus
differential diagnosis. Id. at 963-68. The court held, consistent with Daubert, that testimony
of a valid differential diagnosis combined with a “no threshold” theory cannot eliminate
the need for some scientific proof to show the causal connection between mycotoxins and
laryngeal cancer. Id. at 967.
201
Id. at 974. The court recognized that it was the duty of the judiciary to not merely rely
on the claims of the plaintiff’s expert, but to act as “gatekeeper” and assess scientific
reliability for itself:
[S]omething doesn’t become ‘scientific knowledge’ just because it’s
uttered by a scientist; not [sic] can an expert’s self-serving assertion
that his conclusions were ‘derived by the scientific method’ be deemed
conclusive, else the [Daubert] opinion could have ended with footnote
two. . . [I]t is our responsibility to determine whether those experts’
proposed testimony amounts to ‘scientific knowledge,’ constitutes
‘good science,’ and was ‘derived by the scientific method.’
Id. at 983 (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315-16 (9th Cir.
1995)).
202
See supra notes 126-29 and accompanying text (discussing the admissibility standards
set forth by Daubert).
198
199
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Frye jurisdictions, it is evident that Daubert jurisdictions require more
stringent proof of determining causation.203
Minner v. American Mortgage & Guaranty Company is another case in
which defendants used a Daubert-style attack on the admissibility of
plaintiff’s expert testimony in a toxic mold exposure suit.204 The decision
reached in Minner, however, was not as expected.205 The plaintiffs
brought suit for injuries from long-term mold exposure at work against
their employer and offered opinions of scientific expert witnesses, whose
testimony and opinions supported plaintiff’s allegations.206
The
defendants challenged the testimony and successfully convinced the
Delaware Superior Court that some of the scientific testimony used
could not be admitted due to its unreliable probative value.207 The
Delaware court’s ruling allowed certain testimony, yet excluded other
testimony, based on the idea that the jury should decide how reliable the
testimonies of certain experts are.208 Thus, when comparing Minner with
National Bank of Commerce, courts applying Daubert also rule
inconsistently in determining what testimony given by scientific experts
should reach the jury.209
The decision in Minner, although not as strict as other cases using
Daubert-style attacks, demonstrates how defendants can be successful in
Compare Nat’l Bank of Commerce v. Associated Milk Producers, Inc., 22 F. Supp. 2d
942 (E.D. Ark. 1998) (rejecting expert testimony on causation in Daubert jurisdiction), with
Mondelli v. Kendel Homes Corp., 631 N.W.2d 846 (Neb. 2001) (allowing expert testimony
as proof of causation in a Frye jurisdiction).
204
Minner v. Am. Mortgate & Guaranty, 791 A.2d 826 (Del. Super. Ct. 2000). Plaintiffs
alleged permanent disabilities, including cognitive defects, as a result of long-term
exposure to toxic mold and mycotoxins while at their place of employment. Id. at 833.
205
Id. at 872. The court disagreed with both sides, excluded some testimony, and
allowed other testimony. Id. The court explained that some of the scientific methodologies
used by plaintiffs were not scientifically reliable and may produce incorrect results, but
that other methodologies used were not unsound. Id. at 870.
206
Id. at 847. Expert testimony supported the position that plaintiffs’ exposure to toxic
mold and mycotoxins at their workplaces caused permanent injuries such as cognitive
impairment and neuropsychological deficits. Id.
207
Id. at 849-55.
208
Id. at 872. The court noted:
This text shows that there is a factual and scientific basis for . . .
seemingly inconsistent diagnosis. Therefore, the jury should decide
what effect to give his testimony. There is a sufficient indicia of
reliability to support the evidentiary reliability of . . . testimony. The
decision concerning whether the diagnoses of Plaintiffs’ experts or the
Defendants’ experts are to be believed should be left to the trier of fact.
Id.
209
See discussion supra Part III.A.2 (analyzing inconsistent application of the Daubert
standard in Daubert jurisdictions).
203
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attacking plaintiffs’ expert witnesses.210 Nevertheless, there is great
significance associated with the Minner decision, mainly in that it gives
plaintiffs hope that expert testimony offered in toxic mold cases may
reach the jury despite the fact the court may view the testimony as not
fully valid or reliable.211 As a result, plaintiffs can read decisions such as
Minner as possibly starting a trend in Daubert jurisdictions: allowing
more scientific evidence to reach the jury when there are different
opinions surrounding causation, so long as there is at least some
scientific testimony present that the court deems reliable.212 Based on the
Minner decision, offering new scientific expert testing in toxic mold
cases, such as DNA and mycotoxin extraction testing, may not be as
difficult for plaintiffs as it was previously.213 As evidenced by the Minner
court’s ruling in favor of admissibility of the expert testing, if there is any
“indicia of reliability” surrounding the testing then some courts will
allow the testimony to reach the jury.214 Therefore, when combining
decisions such as Minner with the successful admissibility record of
DNA testing in other areas of law, the probability of DNA extraction
testing in toxic mold cases meeting the established reliability
requirement is very high.215
B. Application of DNA and Mycotoxin Extraction Testing
A testifying expert witness is not required to rely solely upon
published studies or peer-reviewed research to dependably testify about
causation.216 Under Daubert and prior case law such as Minner, the
methodology surrounding the expert’s conclusion is chief to
admissibility.217 Thus, the idea permits the use of a single-patient
210
See Minner, 791 A.2d at 826-72; see also supra note 103 (discussing certain tactics
defendants use to attack plaintiff’s experts).
211
See Minner, 791 A.2d at 826-72; see discussion infra Part III.C, Part IV (discussing policy
reasons favoring more scientific expert testimony to reach juries).
212
See supra notes 204-09 and accompanying text (discussing the holding Minner, in
which the court excluded some expert testimony and allowed other expert testimony).
213
See infra Part III.B (analyzing DNA extraction testing and how the testing passes
admissibility standards).
214
See supra note 205 and accompanying text (allowing certain expert testimony when
there is some reliability surrounding the methodology).
215
See discussion infra Part III.B (discussing the application of the new testing in areas of
toxic mold litigation).
216
See Andrews, supra note 99, at 9.
217
See Minner, 791 A.2d at 872 (holding the jury should decide what effect to give an
expert’s testimony when there is a sufficient indicia of reliability to support an expert’s
testimony).
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methodology such as “differential diagnosis.”218 As noted earlier,
differential diagnosis is a standard clinical technique that identifies the
cause of a medical condition by eliminating other likely causes.219 Given
the fact that differential diagnosis is a reliable and recognizable
methodology in medicine, an accurately performed differential diagnosis
may satisfy Daubert.220 Given that the purpose underlying DNA and
mycotoxin extraction testing is to differentiate exposed human tissue or
body fluids from the unexposed, the testing presents the most accurate
opportunity to satisfy the purpose behind differential diagnosis.221
In the absence of evidence of a general and specific cause of a moldrelated illness, a “differential diagnosis” that toxic mold caused a
plaintiff’s alleged illness lacks sufficient scientific reliability.222 The
Delaware case of New Haverford Partnership v. Stroot demonstrates
differential diagnosis.223 The plaintiffs in Stroot offered expert testimony
of differential diagnosis, claiming the plaintiffs’ injuries were mainly
caused by mold growth inside their apartments.224 The plaintiffs used
air sampling to determine causation.225 In response, the defendants
argued air sampling was insufficient to establish a baseline level of mold
in the apartments.226 The Delaware Supreme Court held that the
methodology underlying the expert’s causation opinion, differential
diagnosis, supported the trial court’s decision to admit the testimony
218
See supra note 143 (defining differential diagnosis and discussing the use of the
methodology).
219
See supra note 143 and accompanying text (explaining the elimination of alternative
diseases through the method of differential diagnosis).
220
See Andrews, supra note 99, at 10; see also New Haverford P’ship v. Stroot, 772 A.2d
792, 800 (Del. 2001) (noting how differential diagnosis can impact mold-related litigation).
221
See discussion supra Part II.D.2 (discussing the purpose surrounding DNA extraction
testing). See also Andrews, supra note 99, at 10. Differential diagnosis involves physicians
trying to identify which single disease a patient is exposed to, rather than differentiate
which of a variety of exposures has caused the disease underlying the symptoms. Id. The
sole purpose of differential diagnosis is to differentiate and identify which disease
underlies certain symptoms. Id.
222
Andrews, supra note 99, at 10.
223
See New Haverford P’Ship, 772 A.2d at 792-801.
224
Id. at 795-97.
225
Id. at 796; see also discussion supra Part II.D.1 (discussing air sampling as one of the
tests used to detect mold and help prove causation).
226
New Haverford P’Ship, 772 A.2d at 799-800. Defendants argued that absent a baseline
level of mold, plaintiff’s experts’ opinion that levels of mold in the apartments were
“excessive” was not methodologically sound. Id. Additionally, defendants argued that the
plaintiff’s experts did not rule out any other potential causes of the plaintiff’s injuries. Id. at
800.
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and thus defeated the defendant’s Daubert challenge.227 In this context,
the court’s decision seems to suggest that the Daubert standard is lower
for opinions based on a differential diagnosis.228 When analyzing the
decision, it seems the court relied upon both the plaintiffs’ offered
causation evidence and the established principle of differential diagnosis
to come to the conclusion that the testimony was reliable. The Stroot
decision is the first case involving differential diagnosis in a toxic mold
exposure case.229 Thus, the Stroot decision demonstrates that courts will
look more favorably upon scientific expert testimony with the desire to
prove causation, if it is offered along with the underlying principle of
differential diagnosis. Based on the preceding analysis, Stroot may
provide a basis for plaintiffs to circumvent Daubert requirements.
Rebuttal of Daubert can take place in cases that will use new mold
detection testing such as DNA and mycotoxin extraction and
identification. The first requirement of Daubert is whether the offered
knowledge or testing can be or has been tested empirically.230 Attacking
this first requirement is the successful result of the DNA testing based on
laboratory studies and procedures conducted in other capacities.231 The
other tests used in conjunction with the DNA testing include established
tests, such as Polymerase Chain Reaction Studies (“PCR”) and Enzyme
Linked Immuno-Sorbant Assay (“ELISA”).232 These tests are well
established and, when used in conjunction, satisfy the second and fourth
requirements of Daubert: (1) whether the theory or technique has been
subjected to peer review and publication, and (2) whether the
227
See id. at 800. But see Geffcken, 137 Cal. App. 4th at 1308 (holding that the expert’s air
sampling test could not be admitted because it did not show the presence of mycotoxins at
plaintiff’s residence). However, differential diagnosis was not used by the plaintiff’s expert
in Geffcken. Id. These two cases exhibit that the same test can be used in similar
circumstances, but the methodology underlying the causation test is the telling factor if the
testimony will be admissible or not.
228
See Andrews, supra note 99, at 10. Differential diagnosis as a methodology does rely
to an extent on the expert’s opinion. Id.
229
Id.
230
See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993).
231
See discussion supra Part II.D.2 (explaining DNA testing in other capacities). The
DNA test designs were based upon test kits originally developed for grains and foodstuffs.
RealTime modified, adapted, and validated the unique DNA testing procedure for use in
human diagnosis. See RealTime, supra note 56, at 8. This is necessary to ensure that
mycotoxins and mold DNA can be measured and detected in human tissue and fluids. See
id.
232
See supra notes 160-62; see also RealTime, supra note 56, at 1. The PCR and the ELISA
tests are approved by the FDA and used similarly in clinical trials to diagnose bacterial,
viral, and some fungal agents. RealTime, supra note 56, at 1.
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methodology is generally accepted among the scientific community.233
These requirements are met due to the common use and general
acceptance of DNA testing in other scientific and legal capacities.234
The final requirement of Daubert is whether there is a high known or
potential rate of error.235 DNA extraction testing passes this requirement
due to the test specificity in that it tests known areas of the DNA,
isolated from the human tissue.236 The need to use DNA probes in
human testing for all organisms, including molds, is increasing because
of the speed and accuracy of the test.237 Additionally, and most
importantly when considering the Stroot decision, DNA and mycotoxin
extraction testing is primarily used as causation testing for the
underlying methodology of differential diagnosis.238
Thus, when
applying DNA extraction testing to prove causation with the underlying
methodology of differential diagnosis, plaintiffs’ scientific experts have a
valid argument on why their testimonies should not be excluded from
reaching the jury.239
233
Daubert, 509 U.S. at 593-94; see also supra note 162. PCR and ELISA testing are both
recognized tests used in viral and bacterial infections, as well as fungal infections. The
DNA extraction testing used in a mold detection capacity is very similar to the ELISA test
that is used for Herpes 1 and 2 diagnosis. Thus, the testing of PCR and ELISA is well
accepted among the scientific community for use in clinical medicine. RealTime, supra note
56, at 8.
234
See supra note 162 (discussing other areas of medicine where DNA testing is
commonly used).
235
See Daubert, 509 U.S. at 594 (discussing the final requirement that must be met in the
standard set by the Supreme Court).
236
See RealTime, supra note 56, at 1, 3-5. The test focuses on known areas of the DNA
isolated from known samples of fungal organisms. Id. The specificity is equal to the
specificity of PCR tests for viruses and bacteria, which is greater than 99 percent. Id. at 3.
The most interesting concept of DNA testing is that is fast and accurate. Id. at 3-4.
According to RealTime, other analytical techniques can take days or weeks to complete. Id.
237
See id. at 3-5. Such tests can be used to accurately diagnose the presence of a specific
mold causing disease. Id. In the past and even now, culturing has been the primary
technique to determine the presence of fungal elements in tissue or body fluids. Id. The
analysis of such cultures usually takes four to six weeks in the laboratory, usually because
of the difficulty in growing and identifying the fungal organism. Id. Due to the difficulty
and time-consuming analysis of cultures, DNA probing of tissue is highly suggestive and
the use of testing such as Polymerase Chain Reaction (PCR) is more appropriate and
helpful. Id.
238
See supra text accompanying notes 162-64. Differential diagnosis is one of the primary
purposes behind the use of the clinical trials. RealTime, supra note 56, at 7-8.
239
See infra Part III.C (arguing public policy favors allowing juries to hear scientific
expert testimony such as DNA extraction testing).
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C. Public Policy Favors Admitting Expert Testimony in Toxic Mold Cases
Policies of fairness and jury integrity provide additional reasons for
admitting expert testimony in toxic mold exposure cases. It is highly
unfair to penalize toxic mold exposure plaintiffs due to the fact that not
all of the scientific evidence needed to prove causation will be admitted.
Additionally, although the current scientific knowledge of mold effects
on human health do not meet the relatively high legal standard of
general acceptance in some cases, the jury, nonetheless, should be given
the opportunity to weigh the credibility of the evidence. Presenting
juries with an opportunity to weigh evidence on both sides of a lawsuit
brings more legitimacy, and ultimately more consistency, to court
decisions. Given the history behind toxic mold litigation, courts have
fallen behind in trying to preserve both ideas.
It is unjust to demand that toxic mold exposure plaintiffs meet
stringent standards of causation at the admissibility stage when scientists
and physicians are still in the process of researching medical and
biological evidence linking mold exposure to hazardous health effects.240
At the admissibility stage of litigation, plaintiffs’ experts have to
demonstrate by a preponderance of the evidence that their opinions are
reliable, not that they are correct.241 Since there are no universal
exposure standards in place to indicate whether mold levels are
inherently unsafe, this should not bar plaintiffs from being able to seek
judicial relief.242 Thus, federal and state courts should admit reasonably
reliable scientific expert testimony, thereby leaving the ultimate decision
of liability to the jury.243
The primary goal in mold exposure litigation is to achieve a balance
between allowing enough expert testimony to ensure plaintiffs have a
fair chance at trial, and preventing unreliable, and not fully accepted,
scientific evidence from being admitted.244 There are ways to confront
See Green, supra note 104, at 681. “[S]tronger and better evidence is unavailable
through no fault of anyone and a decision based on the preponderance of the available
evidence, rather than imposing an evidentiary threshold, would seem in keeping with the
role of the civil justice system.” Id.
241
See In re Paoli, 35 F.3d 717, 744 (3rd Cir. 1994) (stating that the “evidentiary
requirement of reliability is lower than the merits standard of correctness.”).
242
See EPA, supra note 43.
243
See New Haverford P’ship v. Stroot, 772 A.2d 792, 800 (Del. 2001) (noting that juries
should have the ultimate responsibility of determining the admissibility of scientific
evidence).
244
See supra Part III.A (comparing court decisions allowing and excluding certain
scientific expert testimony).
240
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this problem without excluding evidence the trial judge, subjectively,
sees as unfit. Cross examination, presentation of contrary evidence, and
careful instruction on the burden of proof can be ways for defendants to
attack plaintiff testimony.245 To exclude scientific expert testimony
before the jury has a chance to fully digest its probative value and
reliability puts plaintiffs at a major disadvantage from the beginning of
the case. Allowing both sides to present reliable and relevant evidence
seems to be the most equitable answer for the inconsistency surrounding
toxic mold litigation.
In summary, admitting scientific expert testimony such as DNA
extraction testing will not give plaintiffs an advantage or windfall in
toxic mold exposure cases. Rather, admitting testing such as this will
only level the playing field for plaintiffs with valid claims, who are
already faced with an uphill battle in proving causation in toxic mold
claims.246 Ultimately, this may involve changing the way some courts
conduct analysis surrounding scientific expert testimony.
IV. CONTRIBUTION: A MODEL APPROACH TO CURE THE ABUSE OF
DISCRETION INVOLVING SCIENTIFIC EXPERT TESTIMONY
The existing ambiguity surrounding the admission of scientific
expert testimony in both federal and state court lies with the courts’
application of clearly established rules. Courts’ application of the FRE
should reflect the intent to ensure that all claims are given the chance to
be adjudicated fairly. A model approach, manufactured from court
decisions described herein, would set the necessary balance between the
competing interests of having legitimate complaints and the probative
value of scientific expert testimony. Therefore, these general guidelines
will help remind federal and state courts to maintain the FRE’s intent
and purpose.247 Revision of the FRE itself is unnecessary because the
problem lies with the recent application that may set a trend contrary to
the FRE’s purpose.248
See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 596 (1993). Directed Verdict and
Summary Judgment can also be used in the event that the admitted testimony turns out to
be not reliable. Id.
246
See discussion supra Part II.C (discussing the many causation issues plaintiffs confront
in toxic mold litigation).
247
See supra notes 113-15 and accompanying text (stating the purpose behind FRE 702
and 703).
248
See supra Part III.A (analyzing the inconsistent Rule application in federal and state
court decisions).
245
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Thus, this general two-step approach that encompasses the FRE’s
intent limits the problem of judicial discretion. This includes combining
the idea of informing trial judges of the impact and significance of
certain scientific testimony with a call for a more meaningful appellate
review process involving expert evidentiary rulings.249 The impact of
this approach favors admittance of scientific evidence, with an emphasis
on educating the trier of law on the significance and relevancy of certain
testimony, thus allowing the trier of fact the opportunity to determine
the probative value of the offered testimony.250 This is a model
approach, not a model decision, and the author realizes the admittance
of scientific expert testimony may not be appropriate in every
situation.251
A. Step One: Educating the Court
The initial step in the model judicial reasoning is to address the
requirement that scientific expert testimony be relevant and reliable.252
The approach taken by the court should be one of flexibility, favoring
admissibility. During a Daubert or Frye hearing, if the proponent of the
scientific testimony can show that information in the testimony offers
potentially admissible evidence, the relevance requirement should be
fulfilled.253 As a result, when one party is presenting completely
irrelevant scientific evidence, the courts will have no problem refusing
admittance of the offered testimony. However, meeting the reliability
requirement of the FRE is likely where the difficulty lies for the
plaintiff’s experts.254
This is based upon the idea that trial judges are not always wellinformed when it comes to certain issues. Naturally, scientific evidence
249
See supra note 127. “Abuse of discretion” is the proper standard of review of a district
court’s evidentiary rulings. Joiner, 522 U.S. at 155.
250
See infra Part IV.A (describing the value of educating the judge on the value of certain
scientific testimony).
251
See discussion supra Part III.A. (noting situations where admitting scientific expert
testimony is inappropriate and will add confusion and undue delay to the trial process).
252
See supra Part II.C.3. The Federal Rules of Evidence, specifically Rule 702, assigns to
the trial judge “the task of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand. Pertinent evidence based on scientifically
valid principles will satisfy those demands.” Daubert, 509 U.S. at 597.
253
See supra Part II.C.3. Depending on the jurisdiction, a Daubert or Frye hearing is
desired by the defendant at the pre-discovery stage of the trial and plaintiffs must be
prepared to offer a convincing argument to the judge supporting the evidence. Jacobs,
supra note 135, at 537-38.
254
See supra Part III.A.2 (discussing the difficulty plaintiffs experience in Daubert
jurisdictions when trying to meet admissibility standards).
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is one issue where judges can use outside help. It is important to note
that Daubert and Frye hearings are lawyer-driven rather than courtdriven.255 As a result, trial judges typically only know what each lawyer
tells him or her, and very little beyond that. Thus, the key is to
proactively educate the court without sounding too patronizing. Within
this education process, the judge should approach pre-trial admissibility
hearings with the necessary flexibility in order to give each side an
appropriate and fair chance to present its evidence. Three ways for
plaintiffs and defendants alike to approach Daubert hearings are through
detailed complaints, focused discovery, and the early use of scientific
requests for admission.
In most circumstances, complaints should be as simple as possible in
order to not reveal too much information to the other side. However, in
cases involving confusing and complex scientific evidence, it can be
helpful to write a detailed complaint to educate the court on exactly
what is at issue in this case. Plaintiffs may want to include scientific
theories and the facts supporting the science when presenting their cause
of action against the defendant. This may give the defense more time to
prepare for the Daubert hearing, but it also structures the science in the
plaintiff’s terms from the outset of the case, forcing the defense to react
rather than put forward their own theory.
Discovery and early scientific admission requests can also educate
the court about the science surrounding the plaintiff’s expert’s assertions.
In the case of toxic mold exposure, this involves the plaintiff including
very detailed discovery requests regarding every aspect of possible
exposure. Not every discovery request may be possible for the
defendant to fulfill, but at least the plaintiff will demonstrate to the judge
the scientific framework of the claim. This not only educates the judge
about the plaintiff’s claim, but it also shows the judge that a prediscovery Daubert hearing is not a sufficient option because the plaintiff’s
expert is seeking specific facts upon which to build his or her opinion.
In sum, the key to this intended approach is for the court to act with
flexibility when analyzing each of the three aforementioned ideas. Thus,
if the plaintiff meets the recommendations set forth regarding detailed
complaints and discovery requests, as long as the evidence is relevant,
the court should favor admissibility and disregard attacks on the
evidence in pre-trial Daubert hearings. However, it must be noted that if
255
See supra note 135 and accompanying text (discussing the premise behind Daubert
hearings).
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courts adhere to this flexible standard of relevancy, courts should not
accept evidence or arguments claiming that information is only
marginally relevant. Therefore, if judges abide by this flexible standard
of relevancy, this will open up the door for more scientific evidence to
get past pre-trial Daubert and Frye hearings.256 This will result in more
juries having the opportunity to hear evidence and testimony on
scientific issues. Public policy states that when judging reliability on
issues such as scientific evidence, juries rather than judges should be
given the opportunity to hear and decide critical issues.257 Ultimately,
this approach will help ensure fairness and balance in the courtroom.
B. Step Two: Meaningful Appellate Review
The second part of the model judicial reasoning is to introduce a
more meaningful appellate review process. Recall that in the case of
General Electric Company v. Joiner,258 the court held that “abuse of
discretion” is the proper standard of review of a district court’s
evidentiary rulings.259 The abuse of discretion standard also arguably
applies to Daubert rulings.260 Given that abuse of discretion is an
extremely difficult standard to overcome and that a number of
inconsistent rulings based on Daubert have hampered the concept of
collateral estoppel, it would seem that the appeals court ought to have
more leeway in overturning a trial judge’s ruling.261 Thus, a de novo
standard of review seems to be the most appropriate for Daubert
issues.262 A de novo review of pre-trial hearings, such as Daubert, presents
another occasion for plaintiffs to present their scientific evidence at the
appellate level. If for no other reason, this should occur to establish
uniformity of law within the federal and state court systems.
The model approach does not recommend that holdings such as
Joiner need to be overturned. Rather, the approach calls for introducing a
See supra note 135 (discussing pre-trial Daubert hearings).
See supra Part III.C (discussing public policy reasons such as fairness and jury integrity
as additional reasons for favoring admissibility of scientific evidence).
258
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).
259
Id.
260
See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 594-97 (1993). Daubert did not
address the appellate review standard for evidentiary issues, but the holding did indicate
that, while the Federal Rules of Evidence allow district courts to admit a somewhat broader
range of scientific testimony than did prior law, they leave in place the trial judge’s
“gatekeeper” role of screening such evidence to ensure relevancy and reliability. Id.
261
See supra Part III.A.2 (analyzing inconsistent court rulings in Daubert jurisdictions).
262
De Novo is defined as “[a]n appeal in which the appellate court uses the trial court’s
record but review the evidence and law without deference to the trial court’s rulings.”
BLACK’S LAW DICTIONARY 106 (8th ed. 2004).
256
257
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more meaningful appellate review standard for Daubert hearings at the
state level. Given the discretionary nature of Daubert hearings, both
plaintiffs and defendants will, in some jurisdictions, come across courts
that historically favor one over the other. This could be due to a number
of reasons ranging from past jurisprudence to unfamiliarity. A solution
to this problem is the idea that higher courts be given a second chance to
review Daubert rulings from the lower courts. This means recognizing
the problems created by Daubert and going beyond the abuse of a
discretion standard. This is especially appropriate when considering
that scientific evidence offered during Daubert hearings is highly based
on factual evidence. Allowing both sides to present their scientific
evidence a second time at the higher court level ensures that the lower
court’s exercise of discretion was not prejudicial in any way. Therefore,
the most even-handed approach to evidentiary rulings surrounding
scientific evidence should be a standard that allows the appellate court to
analyze a matter as though it had not been heard before. At least with a
de novo approach, if scientific evidence is denied admissibility a second
time, there can be a better understanding of why it was not admitted,
rather than more confusion, which seems to be the case surrounding
Daubert rulings.
As this is a sample approach, federal and state courts must modify
the reasoning according to the facts and arguments each party presents.
However, this approach will aid the courts in addressing the Federal
Rules of Evidence correctly and according to the liberal intent of the
rules. The model approach suggests that courts must grant credence to
both the plaintiff’s and defendant’s scientific evidence and analyze the
evidence at pre-trial hearings with much more flexibility, thus giving
each side a fair and balanced opportunity to present its claims.
Next, even if plaintiff’s scientific evidence does not reach
admissibility at the trial court level, the model approach suggests that a
more meaningful appellate review process be put in place in order to
ensure consistency, and thus bring an end to the confusion that
surrounds evidentiary rulings involving scientific evidence. If federal
and state courts adopt this model approach when analyzing scientific
evidence, decisions will ultimately be more consistent. Consequently, if
scientific evidence is looked upon more favorably by courts, new testing
such as DNA extraction testing will have a better possibility of being
admitted.
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V. CONCLUSION
The importance of the toxic mold problem is reflected in the amount
of mold-related cases across the nation. With more and more people
experiencing adverse health effects and thus abandoning their homes
and workplaces, the significance surrounding toxic mold litigation is
increasing. The arrival of mold exposure litigation suggests a close
examination of scientific expert admissibility standards. Although
federal courts have yet to address the issue of admissibility of DNA
extraction testing in the context of mold litigation, the volume of moldrelated personal injury cases on national and local levels suggests that
courts will soon be forced to do so. When courts apply the federal
standards governing admissibility of scientific expert testing to DNA
extraction testing, the testing will meet the relevancy and reliability
requirements set out by the established rules and guidelines. Thus,
when faced with mold exposure cases, federal and state courts should
admit scientific expert testimony on DNA extraction testing pursuant to
the Federal Rules of Evidence.
Reid S. Hooper263
263
B.B.A. ‘03, The George Washington University; M.S. ‘05 Valparaiso University; J.D. ‘08
Valparaiso University. This Note was inspired by my father and the breakthrough medical
work he has accomplished in the area of toxic mold. Thus, I would like to first dedicate
this Note to my father, Dr. Dennis G. Hooper. Second, I thank RealTime Labs for
providing much of the research used in this Note and also for their continued support
throughout the writing process. Third, I would like to thank my family and, of course, the
love of my life, Monika Danko, for putting up with me during the very long one year
progression of writing and editing. Forth, I want to thank two friends, Zach Hesselbaum
and Seth Colclasure, who tolerated my erratic behavior and continued stress during the
writing of this Note. Finally, I hope this Note improves the chances of those who have
been negatively affected by toxic mold to receive the necessary justice that they desperately
deserve.
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